Hinojosa v. DNR, Docket No. 248185.

• Decision Date: 28 October 2004
• Docket Number: Docket No. 248185.
• Citation: 688 N.W.2d 550,263 Mich. App. 537
• Parties: Sanjuana HINOJOSA, Samuel Hinojosa, Selena Hinojosa, Corrine Hinojosa, Victor Perez, and Michigan Basic Property Insurance Association, Plaintiffs-Appellants, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

688 N.W.2d 550

263 Mich. App. 537

Sanjuana HINOJOSA, Samuel Hinojosa, Selena Hinojosa, Corrine Hinojosa, Victor Perez, and Michigan Basic Property Insurance Association, Plaintiffs-Appellants, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee.

Docket No. 248185.

Court of Appeals of Michigan.

Submitted August 4, 2004, at Lansing.

Decided September 9, 2004, at 9:05 a.m.

Released for Publication October 28, 2004.

Briggs Colegrove, P.C. (by Todd E. Briggs and Sarah W. Colegrove), Detroit, for the plaintiffs.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Mark V. Schoen, Assistant Attorney General, for the defendant.

Before: MURRAY, P.J., and MARKEY and O'CONNELL, JJ.

PER CURIAM.

We must decide in this case whether Const. 1963, art. 10, § 2¹ requires the state to justly compensate neighboring property owners for damage caused by a fire that spread from an abandoned house after the state acquired it through tax delinquency proceedings. We hold that the circumstances do not constitute a "taking" or "inverse condemnation" because the state took no affirmative action toward plaintiffs' properties. At most, it failed to abate a fire-hazard nuisance. Attorney General v. Ankersen, 148 Mich.App. 524, 561-562, 385 N.W.2d 658 (1986). Accordingly, we affirm the trial court's grant of summary disposition for defendant. MCR 2.116(C)(8).

I. Factual Background

The state acquired property at 2015 Lansing Street in Detroit on May 2, 2000, after no one redeemed it following a tax sale.² Fire damaged the house on the property on January 1, 2001. Subsequently, inspectors for the city of Detroit determined the house violated the city's building code; consequently, the city's Buildings and Engineering Department deemed the house a "dangerous building." After the January fire, vagrants frequented the house, warming themselves by burning wood siding in a hole in the floor of the structure. On September 18, 2001, the city filed a lis pendens giving notice that the property would "be demolished as an unsafe structure."

Plaintiffs Sanjuana Hinojosa and her husband, Samuel Hinojosa, owned a neighboring home, which they rented to their two daughters, Selena and Corrine, and Victor Perez, all of whom are plaintiffs in this case. Rogelio Plascencia owned another neighboring home insured by plaintiff Michigan Basic Property Insurance Association (MBPIA). According to affidavits signed by Mr. and Mrs. Hinojosa, they contacted city officials several times between January 31, 2001, and March 19, 2002, regarding the condition of 2015 Lansing Street. The Hinojosas also averred that a "Dangerous Building Notice" was posted at the property on January 31, 2001.

On March 19, 2002, the house at 2015 Lansing Street burned again. This fire also damaged the homes of the Hinojosas and Plascencia. Plaintiff MBPIA asserts subrogation rights to the extent it paid fire damage claims of Plascencia. The Hinojosas' home was not insured.

Plaintiffs filed a two-count complaint, alleging trespass-nuisance and an unconstitutional taking or inverse condemnation. Plaintiffs subsequently moved for summary disposition pursuant to MCR 2.116(C)(9) and (10). Defendant also moved for summary disposition on the basis of MCR 2.116(C)(7), (8), and (I)(2). The trial judge, sitting as the Court of Claims, heard arguments of counsel on April 2, 2003. The parties agreed that because plaintiffs' complaint was filed on July 29, 2002, plaintiffs' trespass-nuisance tort claim was barred on the basis of governmental immunity. MCL 691.1407; Pohutski v. City of Allen Park, 465 Mich. 675, 690, 699, 641 N.W.2d 219 (2002). Regarding plaintiffs' constitutional claim, the trial court agreed with the state that plaintiffs' reliance on Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970), for the proposition that trespass-nuisance is a constitutional tort was misplaced. Further, because plaintiffs' complaint did not allege "any overt activity which interfered with the Plaintiffs['] enjoyment of their property," the court determined that plaintiffs had not alleged a "taking" of property that required just compensation. The parties also stipulated that no facts existed that would support amending plaintiffs' complaint to allege an overt act by the state. MCR 2.116(I)(5). Accordingly, the trial court entered its order granting defendant's motion to dismiss. Plaintiffs appeal by right.

II. Standards of Review

We review de novo the trial court's decision on a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). "MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted." Id. The trial and reviewing courts must accept all well-pleaded factual allegations as true, construing them in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). The motion may be granted only "where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).

We review de novo the trial court's decision on a motion for summary disposition under MCR 2.116(C)(7) to determine if the moving party was entitled to judgment as a matter of law. Lavey v. Mills, 248 Mich. App. 244, 249, 639 N.W.2d 261 (2001). A court must consider all submitted documentary evidence in a light most favorable to the nonmoving party. Id at 250, 639 N.W.2d 261. Further, a court must accept as true the contents of the complaint unless specifically contradicted by submitted documentary evidence. Id.; Maiden, supra at 119, 597 N.W.2d 817.

We review constitutional questions de novo. Co. Rd. Ass'n v. Governor, 260 Mich.App. 299, 303, 677 N.W.2d 340 (2004); Wayne Co. Chief Executive v. Governor, 230 Mich.App. 258, 263, 583 N.W.2d 512 (1998).

III. Analysis

A. Buckeye Union Fire Ins. Co. v. Michigan

We agree with the trial court and defendant that Buckeye, which considered a factual situation similar to that of the case at bar, does not control the constitutional question presented here. In Buckeye, the plaintiffs contended unoccupied industrial property the state acquired through tax delinquency proceedings was readily accessible to vandals and trespassers, creating a fire hazard that resulted in fire damage to neighboring property. Buckeye, supra at 632, 178 N.W.2d 476. Our Supreme Court determined that the state was not protected by sovereign immunity against the plaintiffs' nuisance claim. Id. at 644, 178 N.W.2d 476.

In the first section of its opinion in Buckeye, the Court emphasized that the state's liability was predicated on maintaining a nuisance, observing:

It was in the very nature of the nuisance involved in this case — a fire hazard — the eventually negligent or lawless acts or sheer chance or an act of God (lightning) would convert the peril to the neighboring land into a destructive force — the hazard — the nuisance took its toll. Damage to plaintiffs flowed from the nuisance and the mere fact that negligence may have existed in a variety of acts or by inaction by the state during the continuing period of the nuisance will not permit it to escape its liability. [Id. at 638, 178 N.W.2d 476.]

In the second section of its decision, the Buckeye Court held that the fact that the property could still be redeemed on the date of the fire did not affect the state's liability. Id. at 638-640, 178 N.W.2d 476.

In the final section of its opinion, the Buckeye Court addressed the issue of sovereign immunity. Id. at 640-644, 178 N.W.2d 476. The Court reasoned that immunity would be improperly applied in light of the 1908 constitutional prohibition against taking property for public use without just compensation at the time of the fire.³Id., at 641-643, 178 N.W.2d 476. The Court quoted Thornburg v. Port of Portland, 233 Or. 178, 192, 376 P.2d 100 (1962), for the proposition that "`a taking occurs whenever government acts in such a way as substantially to deprive an owner of the useful possession of that which he owns, either by repeated trespasses or by repeated non-trespassory invasions called nuisance.'" Buckeye, supra at 643, 178 N.W.2d 476 (internal punctuation omitted). The Buckeye Court concluded that the "fire hazard which the state permitted to continue was a nuisance which directly interfered with the property of plaintiffs' subrogors and ultimately led to its damage." Id. at 643, 178 N.W.2d 476. Thus, the Buckeye Court held: "There is no sovereign immunity applicable to a situation of nuisance as we have in this case." Id. at 644, 178 N.W.2d 476.

But we must view the Buckeye decision in its historical perspective. Before August 1, 1970, appellate decisions governed sovereign immunity. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 607, 363 N.W.2d 641 (1984), citing Pittman v. City of Taylor, 398 Mich. 41, 46, 247 N.W.2d 512 (1976) (Kavanagh, C.J.). Further, because the fire at issue in Buckeye occurred before the adoption of Michigan's current Constitution, the Court applied Michigan's 1908 Constitution to hold that common-law sovereign immunity did not shield the state from tort liability for nuisance. Thus, neither statutory immunity, MCL 691.1407, nor Const. 1963, art. 10, § 2, were at issue in Buckeye. The liability imposed on the state was for the tort of nuisance, not to justly compensate an owner for the taking of private property for public use. Nevertheless, the Buckeye Court relied on the Taking Clause as its rationale for concluding that common-law sovereign immunity did not shield the state from liability for nuisance.

Our Supreme Court later would address "whether, in light of the governmental tort liability act[⁴] and Ross, any common-law tort-based exception to governmental immunity may be recognized."...