969 N.W.2d 518
Mich. Ct. App.2021Background
- Terry and Marla Wolfenbarger bought land in 1990 and planted ~280 trees; nearby landowners included Frank Wright and Steven Lewis.
- Wright constructed a gravel road/driveway in March 2013 and later placed a pile of dirt and created a pond; plaintiffs allege these actions altered historic drainage, raising the water table and killing many trees and damaging their basement.
- Plaintiffs sued Wright for negligence, trespass, and nuisance; defendant moved for partial summary disposition arguing the gravamen was negligence and noneconomic damages were barred.
- The trial court dismissed the trespass and nuisance counts under MCR 2.116(C)(8) for failing to plead intentional conduct, denied leave to amend, and excluded noneconomic damages; the negligence claim went to a jury, which awarded $50,000.
- Posttrial the court denied plaintiffs’ bill of costs for failure to serve it on defendant within the rule’s requirements, and later found defendant’s remediation (culverts, retention basin, pumps) adequate after an evidentiary hearing.
- On appeal the Court of Appeals affirmed dismissal of trespass and nuisance but held the trial court abused its discretion by denying leave to amend and erred in finding plaintiffs waived costs; it upheld the remediation ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of trespass pleadings | Wolfenbargers: complaint alleged Wright diverted water by building road/hill and alleged intentional conduct | Wright: pleadings show negligence only; no factual allegation of intent to flood | Court: dismissal affirmed — complaint lacked factual allegations showing intent necessary for trespass |
| Sufficiency of nuisance pleadings | Wolfenbargers: pleadings allege road/dirt materially increased flow and damaged use/enjoyment | Wright: allegations duplicate negligence; nuisance is not pleaded separately | Court: dismissal affirmed — nuisance allegations tracked negligence and alleged monetary harm, not a distinct interference with enjoyment |
| Denial of leave to amend (to replead trespass/nuisance) | Wolfenbargers: proposed amended complaint cured defects by adding factual allegations of intent, occupation/skill, and continued diversion; filed shortly after dismissal | Wright: amendment untimely and prejudicial before trial; claims already dismissed | Court: trial court abused discretion — amendment should have been allowed (amendment not futile and not unduly delayed), but new allegation about dust/noise/business operation would be prejudicial and cannot proceed |
| Waiver of costs for failing to serve bill of costs | Wolfenbargers: timely presented bill to clerk within 28 days; failure to immediately serve defendant did not forfeit costs | Wright: failure to immediately serve equals waiver; rule is mandatory | Court: trial court erred — failure to present to clerk within time triggers waiver; failure to serve is noncompliance but not an automatic waiver under MCR 2.625(F) |
Key Cases Cited
- Price v. High Pointe Oil Co., Inc., 493 Mich 238 (2013) (noneconomic damages are not recoverable for negligent destruction of property)
- Adams v. Cleveland-Cliffs Iron Co., 237 Mich App 51 (1999) (trespass requires unauthorized, direct, intentional intrusion of a physical object)
- Wiggins v. City of Burton, 291 Mich App 532 (2011) (unauthorized flooding can constitute trespass)
- Adkins v. Thomas Solvent Co., 440 Mich 293 (1992) (elements of private nuisance defined)
- Feyz v. Mercy Memorial Hosp., 475 Mich 663 (2006) (standard of review for MCR 2.116 motions)
- Weymers v. Khera, 454 Mich 639 (1997) (futility and prejudice as bases to deny amendment)
- Lane v. KinderCare Learning Ctrs., Inc., 231 Mich App 689 (1998) (factors for denying leave to amend)
- In re McCarrick/Lamoreaux, 307 Mich App 436 (2014) (rules of court interpretation)
- Browder v. Int’l Fidelity Ins. Co., 413 Mich 603 (1982) (use of "shall" denotes mandatory duty)
- U.S. Fidelity & Guar. Co. v. Amerisure Ins. Co., 195 Mich App 1 (1992) (expressio unius est exclusio alterius in statutory interpretation)