Sokel v. Nickoli, 7

• Decision Date: 06 June 1959
• Docket Number: No. 7,7
• Citation: 97 N.W.2d 1,356 Mich. 460
• Parties: Ernest C. SOKEL and Elizabeth Sokel, his wife, jointly and severally, Plaintiffs, Appellants and Cross-Appellees, v. Toussaint NICKOLI, d/b/a T. N. Construction Company and Walter Sikora and Veronica Sikora, his wife, Defendants, Appellees and Cross-Appellants.
• Court: Michigan Supreme Court

Page 1

97 N.W.2d 1

356 Mich. 460

Ernest C. SOKEL and Elizabeth Sokel, his wife, jointly and severally, Plaintiffs, Appellants and Cross-Appellees, v. Toussaint NICKOLI, d/b/a T. N. Construction Company and Walter Sikora and Veronica Sikora, his wife,

Defendants, Appellees and Cross-Appellants.

No. 7.

Supreme Court of Michigan.

June 6, 1959.

John T. McWilliams, Dearborn, for plaintiffs and appellants.

Joel G. Jacob, and Meyer R. Rubin, Detroit, for defendants, Walter Sikora and Veronica Sikora, appellees and cross-appellants.

Before the Entire Bench.

KELLY, Justice.

Appellants' original chancery action resulted in a determination that an encroachment existed and decree was entered to the effect that appellants deed to appellees the 4.65 feet in dispute and appellees pay appellants $450 therefor. Our Court reversed the trial court and ordered the encroachment removed and remanded the case for the purpose of determining damages. See Sokel v. Nickoli, 347 Mich. 146, 79 N.W.2d 485.

Previous to trial to determine damages, appellees removed the encroachment by dismantling part of their brick garage.

The court denied appellants a jury trial and, after hearing testimony and arguments, awarded appellants damages in the amount of $880.33. Appellants appeal, claiming that the trial court erred in not allowing $4,250 for 'increased contract building costs' and acquisition of adjoining land; $4,650 for 'damages caused by cloud on title,' and $196.15 reimbursement for taxes which appellants had paid.

Claim No. 1: Increased Contract Building Costs and Enforced Purchase of Adjoining Land--Total $4,250.

March 11, 1953, appellants contracted with a builder to construct a residence on the Dearborn lots in question for $22,600. Appellants contend that the residence was not built; that they were denied a building permit because appellees' garage encroached on their land.

The contractor testified that because of increased building costs it would require an additional $4,520 to build the proposed dwelling in 1957, and a qualified experienced builder testified the 1957 additional cost would be $3,600. These estimates are not challenged and constitute the proof appellants rely upon to sustain their $4,000 damage claim for increased building costs.

Appellees claim that the 1957 building costs would not be applicable for the reason that appellants bought an adjoining 8.7-foot strip of land in 1954, thus having more than sufficient land to compensate for appellees' encroachment of 4.65 feet. Appellants admit they made no effort to build nor to obtain a building permit after acquiring this additional land, and that on February 1, 1954, they bought and moved into a newly constructed home in Allen Park. No proof was introduced as to what the building costs would be in 1954.

Testimony by city officials, which was not refuted, justified the trial court's statement in the opinion that:

'The Court finds from the testimony, practically without dispute, that under the ordinances of the city of Dearborn the plaintiffs could not have erected the house and garage contemplated by their plans and blueprint, without violating the zoning ordinance of the city of Dearborn, and that a building permit based upon those plans could not have been procured.'

Appellants contend that the trial court erred in considering the testimony of the city officials because:

'The question of the reason why plaintiffs were denied a building permit was res adjudicata as clearly shown by the Supreme Court decision, Sokel v. Nickoli, 347 Mich. 146, 79 N.W.2d 485, where on page 488, the Supreme Court said:

"Plaintiffs, having contracted with builder--Witness Kolton to construct a home on their two lots for $22,600, were denied a building permit on account of such encroachment."

The record submitted to this Court in the previous appeal justified the statement that appellants were denied a building permit because of appellees' encroachment, as the only testimony was that of appellant Ernest Sokel that 'the city would not give me a building permit because there wasn't enough room left,' and the contractor's testimony: 'I am a licensed builder. I took Sokel's building plans to Dearborn building department and they wouldn't give me a permit. The inspector, Mr. McAuliffe, put red lines on it to show there wasn't room.'

At the original hearing the trial court did not pass on the question of damages because of the encroachment and we remanded, without restrictions, to determine 'fact and amount of damages.'

The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.

In Stevenson v. Brotherhoods Mutual Benefit, 317 Mich. 575, 27 N.W.2d 104, we held:

'Where matter of justification for discharge of plaintiff who had been hired by defendant company as field organizer to write benefit policies had not been passed upon by trial court in a previous case arising out of same contract, statement in opinion on appeal that discharge was justified held, an expression of opinion and unnecessary to determination of the issues involved therein, hence the question of whether the discharge was justified was not res judicata.' (Syllabus 1).

The trial court did not err in considering the testimony proving that, even though appellees had not encroached, appellants could not, under the Dearborn ordinances, have obtained a building permit.

In regard to the $250 claimed as reimbursement for purchasing the adjoining strip of land, appellants in their brief state: 'If they failed to purchase the land they might never be able to use the plot for a...