Kratze v. Independent Order of Oddfellows, Garden City Lodge No. 11, Docket No. 126453

CourtCourt of Appeal of Michigan (US)
Writing for the CourtPER CURIAM
Citation475 N.W.2d 405,190 Mich.App. 38
Docket NumberDocket No. 126453
Decision Date18 June 1991
PartiesDavid R. KRATZE, Plaintiff-Appellee, v. INDEPENDENT ORDER OF ODDFELLOWS, GARDEN CITY LODGE NO. 11 and Grand Lodge of Michigan, Independent Order of Oddfellows, Defendants-Appellants.

Page 405

475 N.W.2d 405
190 Mich.App. 38
David R. KRATZE, Plaintiff-Appellee,
v.
INDEPENDENT ORDER OF ODDFELLOWS, GARDEN CITY LODGE NO. 11
and Grand Lodge of Michigan, Independent Order of
Oddfellows, Defendants-Appellants.
Docket No. 126453.
Court of Appeals of Michigan.
Submitted March 20, 1991, at Lansing.
Decided June 18, 1991, at 9:30 a.m.
Released for Publication Oct. 28, 1991.

Page 406

[190 Mich.App. 40] Weisman, Trogan, Young & Schloss, P.C., by Martin C. Weisman and Adam J. Baker, Birmingham, for plaintiff.

Gerald M. Soborowski, Garden City, for defendants.

Before HOOD, P.J., and JANSEN and ALLEN, * JJ.

PER CURIAM.

Defendants Independent Order of Oddfellows, Garden City Lodge No. 11 and Grand Lodge of Michigan, Independent Order of Oddfellows appeal as of right from a judgment entered in the Wayne Circuit Court following a bench trial, under the terms of which defendants are to remove that portion of a building owned by Lodge No. 11 that encroaches upon land belonging to plaintiff and are to pay to plaintiff $797,215.46 in damages suffered as a result of the encroachment. We reverse in part, affirm in part, and remand for a new trial.

Page 407

Lodge No. 11 purchased Lots 2911 and 2912 of Folker's Garden City Acres No. 18 in December 1948. Already existing on the lots at the time of their purchase was a building foundation upon which the previous owners had intended to erect a church. Lodge No. 11 instead erected its meeting hall on this foundation.

In September 1985, plaintiff entered into an option agreement to purchase Lots 2901 to 2910 of Folker's Garden City Acres No. 18. This property is adjacent to and abuts the property owned by Lodge No. 11. Plaintiff gave a deposit of $1,000 and agreed to purchase the property for $18,000. He intended to erect multiple-unit dwellings on the property.

[190 Mich.App. 41] Plaintiff caused two surveys of the property to be done. As a result of the first survey, plaintiff received in early 1986 a "schematic" of his property that showed the northeast corner of the building owned by Lodge No. 11 touching plaintiff's property line. A site plan for a sixty-two-unit apartment building was prepared using this schematic and submitted to Garden City for approval on March 27, 1986. A short time later, plaintiff learned, as a result of the second survey, that the northeast corner of the building owned by Lodge No. 11 encroached 1.2 feet onto his property. 1 Nevertheless, in May 1986 plaintiff purchased the property for $18,000 as agreed.

The Garden City Planning Commission approved plaintiff's site plan on August 28, 1986, as submitted, without knowledge of the encroachment. 2 However, as a result of the encroachment, plaintiff was unable to secure title insurance and, without title insurance, to secure financing for his project.

In July, 1987 plaintiff filed the instant action in the Wayne Circuit Court, seeking damages resulting from the encroachment. Following a one-day bench trial, the court ordered the encroachment removed and found Lodge No. 11 and the Grand Lodge jointly and severally liable for damages totalling $797,215.46, exclusive of costs and interest. The instant appeal followed.

I

Defendants argue that the mere fact that the Grand Lodge holds only a contingent, nonpossessory[190 Mich.App. 42] interest in the land and building owned by Lodge No. 11 is insufficient to support the trial court's imposition of liability for trespass against the Grand Lodge. We agree, but before we can engage in a discussion of the merits of defendants' claim of error, we must first address a preliminary issue raised by plaintiff.

Plaintiff requests that this Court decline consideration of the instant challenge to the trial court's finding of liability against the Grand Lodge because both defendants, through the same counsel, conceded at trial liability for any damages arising out of the encroachment and because neither defendant raised a challenge at trial to the Grand Lodge's status as a defendant. We cannot do that which is requested of us.

Defendants conceded on the record, at the beginning of trial, the existence of the encroachment. Nowhere in the record, however, do we find evidence of an intent on the part of defendants to concede that both the Grand Lodge and Lodge No. 11 held a sufficient interest in Lots 2911 and 2912, or the building thereon, to subject the lodges to joint and several liability. In fact, the record evidences a contrary intent. Defense counsel began his closing argument with a challenge to the authority of the trial court to impose liability on the Grand Lodge where the lodge lacked a possessory interest in the encroaching property. This challenge was addressed briefly by the trial court in its findings on the record. Where an issue has been raised before and addressed by the trial court, the issue has been properly preserved for review by this Court. Providence

Page 408

Hosp. v. Labor Fund, 162 Mich.App. 191, 194, 412 N.W.2d 690 (1987). Any confusion with regard to whether defendants' claim has been properly preserved arises from defense counsel's joint representation of the [190 Mich.App. 43] lodges, his strong identification with his clients, and his frequently imprecise use of the English language, as demonstrated in the record and at oral argument.

We turn now to a discussion of the merits of defendants' claim. It is a well-established principle of law that all persons who instigate, command, encourage, advise, ratify, or condone the commission of a trespass are cotrespassers and are jointly and severally liable as joint tortfeasors. Kapson v. Kubath, 165 F.Supp. 542, 551-552 (W.D.Mich., 1958), and cases cited therein. See also Oyler v. Fenner, 264 Mich. 519, 521, 250 N.W. 296 (1933). Moreover, in 87 C.J.S. Trespass, Sec. 32, pp 990-991, it is stated:

The general rule is that all who wrongfully contribute to the commission of a trespass or assent to its commission or connive therein, or who benefit by it, or who aid, abet, assist, or advise a trespasser in committing a trespass, are equally liable with one who does the act complained of. It is essential, however, that there be some cooperation and concert of action between them. It is not enough that the defendants were present and together at the time the trespass was committed, and, in order to render liable as joint trespassers those who did not actively participate in the commission of the trespass, it must appear that they did something by way of encouragement, advice, or suggestion which led or helped to lead to the commission of the trespass.

Persons ordering or authorizing an act are jointly liable with those who do it.... Where the act is done by one for the benefit of another and afterward ratified by him they are joint trespassers. There is no joint trespass where defendant's independent acts contributed to the result or where they cooperated...

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13 practice notes
  • Kohut v. Serra (In re Munivest Servs., LLC), Bankruptcy No. 10–71403.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • October 15, 2013
    ...P.C. v. Bloch, 114 Mich.App. 700, 319 N.W.2d 638, 641 (1982); and aiding and abetting trespass, Kratze v. Indep. Order of Oddfellows, 190 Mich.App. 38, 475 N.W.2d 405, 408 (1991), rev'd in part on other grounds by442 Mich. 136, 500 N.W.2d 115 (1993). Based upon its review of these Michigan ......
  • Wiggins v. City of Burton, Docket No. 293023.
    • United States
    • Court of Appeal of Michigan (US)
    • February 8, 2011
    ...are cotrespassers and are jointly and severally liable as joint tortfeasors.” Kratze v. Indep. Order of Oddfellows, Garden City Lodge, 190 Mich.App. 38, 43, 475 N.W.2d 405 (1991) ( Kratze I ), rev'd in part on other grounds 442 Mich. 136, 500 N.W.2d 115 (1993); see also Oyler v. Fenner, 264......
  • City of Taylor v. Detroit Edison Co., Docket No. 250648.
    • United States
    • Court of Appeal of Michigan (US)
    • November 10, 2004
    ...before or presented in the lower court; therefore, it is not properly preserved for appeal. Kratze v. Independent Order of Oddfellows, 190 Mich.App. 38, 42, 475 N.W.2d 405 (1991), rev'd in part on other grounds 442 Mich. 136, 500 N.W.2d 115 (1993); FMB-First Michigan Bank v. Bailey, 232 Mic......
  • Amoco Pipeline v. Herman Drainage Systems, Inc., Case No. 1:00-CV-729.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 6, 2002
    ...of." Helsel v. Morcom, 219 Mich.App. 14, 22, 555 N.W.2d 852, 855 (1996)(per curiam) (citing Kratze v. Indep. Order of Odd-fellows, 190 Mich.App. 38, 43, 475 N.W.2d 405, 408 (1991)(per curiam), aff'd in part and rev'd in part on other grounds, 442 Mich. 136, 500 N.W.2d 115 (1993)). Liab......
  • Request a trial to view additional results
13 cases
  • Kohut v. Serra (In re Munivest Servs., LLC), Bankruptcy No. 10–71403.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • October 15, 2013
    ...P.C. v. Bloch, 114 Mich.App. 700, 319 N.W.2d 638, 641 (1982); and aiding and abetting trespass, Kratze v. Indep. Order of Oddfellows, 190 Mich.App. 38, 475 N.W.2d 405, 408 (1991), rev'd in part on other grounds by442 Mich. 136, 500 N.W.2d 115 (1993). Based upon its review of these Michigan ......
  • Wiggins v. City of Burton, Docket No. 293023.
    • United States
    • Court of Appeal of Michigan (US)
    • February 8, 2011
    ...are cotrespassers and are jointly and severally liable as joint tortfeasors.” Kratze v. Indep. Order of Oddfellows, Garden City Lodge, 190 Mich.App. 38, 43, 475 N.W.2d 405 (1991) ( Kratze I ), rev'd in part on other grounds 442 Mich. 136, 500 N.W.2d 115 (1993); see also Oyler v. Fenner, 264......
  • City of Taylor v. Detroit Edison Co., Docket No. 250648.
    • United States
    • Court of Appeal of Michigan (US)
    • November 10, 2004
    ...before or presented in the lower court; therefore, it is not properly preserved for appeal. Kratze v. Independent Order of Oddfellows, 190 Mich.App. 38, 42, 475 N.W.2d 405 (1991), rev'd in part on other grounds 442 Mich. 136, 500 N.W.2d 115 (1993); FMB-First Michigan Bank v. Bailey, 232 Mic......
  • Amoco Pipeline v. Herman Drainage Systems, Inc., Case No. 1:00-CV-729.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 6, 2002
    ...of." Helsel v. Morcom, 219 Mich.App. 14, 22, 555 N.W.2d 852, 855 (1996)(per curiam) (citing Kratze v. Indep. Order of Odd-fellows, 190 Mich.App. 38, 43, 475 N.W.2d 405, 408 (1991)(per curiam), aff'd in part and rev'd in part on other grounds, 442 Mich. 136, 500 N.W.2d 115 (1993)). Liab......
  • Request a trial to view additional results

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