Wolfenbarger v. Wright
Decision Date | 11 February 2021 |
Docket Number | No. 350668,350668 |
Citation | 336 Mich.App. 1,969 N.W.2d 518 |
Parties | Terry WOLFENBARGER and Marla Wolfenbarger, Plaintiffs-Appellants, v. Frank WRIGHT, Jr., Defendant-Appellee, and Steven Lewis, Defendant. |
Court | Court of Appeal of Michigan — District of US |
Rasor Law Firm, PLLC (by James B. Rasor, Royal Oak, and Andrew J. Laurila ) for Terry and Marla Wolfenbarger.
DeLoof, Dever, Eby, Wright, Milliman, Bourque & Issa, PLLC (by Thomas M. Wright, Ann Arbor) for Frank Wright, Jr.
Before: Cavanagh, P.J., and Servitto and Cameron, JJ.
Cavanagh, P.J. Plaintiffs appeal as of right orders (1) granting partial summary disposition in favor of defendant Frank Wright, Jr., and dismissing plaintiffs' claims of trespass and nuisance, (2) denying plaintiffs' motion for leave to amend their complaint, (3) denying plaintiffs' motion for entry of a verified bill of costs, and (4) denying plaintiffs' renewed motion for remediation. We affirm in part, reverse in part, and remand for further proceedings.
Plaintiffs, Terry and Marla Wolfenbarger, purchased the property located on Foster Lane in LaSalle Township in 1990. Over several years, plaintiffs planted 280 trees on their property. Defendant purchased nearby property in 1995. In approximately 2008, Steven Lewis purchased the lot west of and adjacent to plaintiffs.1 Because of the vastness of defendant's property interests, it appears he owned land to the west of Lewis, to the south of Lewis and plaintiffs, and to the east of plaintiffs.
According to plaintiffs, they had no issues with water on their property until after defendant constructed a new road or driveway on his property in March 2013. After that time, water started collecting in the southeast corner of their land, oversaturating and thus killing the trees that had been planted there. As of March 2015, 46 trees had died, and as of trial, 79 trees had died. Jeffrey Thierbach, an arborist, testified that all the trees on plaintiffs' land were affected in some manner. Plaintiffs also alleged that their basement started cracking after 2013. They attributed this damage to defendant's actions as well. In addition to constructing the driveway or roadway in early 2013, defendant also created a pond on his land in the latter half of 2013 that, according to plaintiffs' expert, acted to raise the level of the water table by six feet in the area. Plaintiffs alleged that this resulted in the water table now being several feet higher than the bottom of plaintiffs' basement, and another expert opined that the damage plaintiffs sustained in their basement was consistent with a high water table.
Plaintiffs filed a lawsuit against defendant, alleging claims of negligence, trespass, and nuisance. Plaintiffs' claims in the complaint were based on defendant's construction of a new road on his property and defendant's placement of a pile of dirt on his property. Plaintiffs alleged that these new features, in essence, prevented or dammed the water from leaving their property.
Defendant moved for partial summary disposition, arguing that the trespass and nuisance claims should be dismissed. Defendant maintained that although plaintiffs had listed three separate counts against defendant, the gravamen of plaintiffs' complaint was negligence. And because the claim sounded in negligence, defendant argued that plaintiffs were barred from seeking any noneconomic damages.
Plaintiffs responded, arguing that they had sufficiently alleged intentional conduct by defendant to support their claim of trespass. Plaintiffs also argued that they had sufficiently pleaded a nuisance cause of action because they alleged that their property rights had been interfered with by defendant's actions, i.e., by his building of a road and hill that increased the flow of water onto plaintiffs' property. And because these claims were separate and distinct from a negligence claim, plaintiffs maintained that they are allowable. Further, because the tort claims of trespass and nuisance were valid, plaintiffs argued, they were entitled to the recovery of noneconomic damages.
At the motion hearing, the parties argued consistently with their briefs, except that plaintiffs changed their argument with respect to the nuisance claim. Plaintiffs' counsel asserted at the hearing that the nuisance claim was based on the fact that defendant was running a large-scale commercial business on his property that created excess noise, traffic, and dirt. The trial court noted that although defendant's motion was purportedly being brought under both MCR 2.116(C)(8) and (C)(10), no evidence had been submitted, so the court was treating the motion as having been brought under MCR 2.116(C)(8). The court stated:
The trial court consequently granted defendant's motion and dismissed plaintiffs' claims of trespass and nuisance. And because only the negligence claim was remaining, the court also dismissed plaintiffs' requests for noneconomic damages.
Plaintiffs moved for reconsideration. Plaintiffs argued that Price only addressed whether noneconomic damages were available in a negligence case—it did not state that one cannot allege claims of negligence, trespass, and nuisance simultaneously—and that other cases show it is indeed permissible to allege these claims in one complaint. Plaintiffs also averred in that motion, as well as in a separate motion for leave to file an amended complaint, that assuming they had failed to plead sufficient facts to support their claims of trespass and nuisance, they should be allowed to amend their complaint—and a proposed amended complaint was attached.
At the motion hearing, the trial court acknowledged that a party can bring claims of negligence, trespass, and nuisance in the same action. Despite this, the court ruled:
The trial court then added that it had reviewed the motion for reconsideration and found no palpable error, and therefore, that motion was also denied. Plaintiffs sought leave to appeal in this Court, which was denied. Wolfenbarger v. Wright , unpublished order of the Court of Appeals, entered August 2, 2017 (Docket No. 338734).
Trial started on March 26, 2018 and ended on April 2, 2018. At the close of proofs, plaintiffs moved to amend their complaint to include claims of trespass and nuisance. Plaintiffs argued that amendment was proper because it would comport with the evidence that was introduced at trial. The court denied the motion, saying,
The jury returned a verdict in favor of plaintiffs on their claim of negligence. Although plaintiffs had requested a minimum of $429,850 to repair their basement and replace the trees, the jury awarded a total of $50,000 in damages.
On August 21, 2018, plaintiffs filed their verified bill of costs, seeking more than $46,000 under MCR 2.625. However, plaintiffs did not serve the bill of costs on defendant. In response to plaintiffs' subsequent motion for entry of the verified bill of costs, defendant objected and argued that the failure of plaintiffs to serve defendan...
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