City of Battle Creek v. Bryant C Debolt Revocable Trust ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CITY OF BATTLE CREEK, UNPUBLISHED
February 16, 2023
Plaintiff-Appellee,
v No. 358617
Calhoun Circuit Court
BRYANT C. DEBOLT, SR. and JULYETTE G. LC No. 2019-003467-CZ
JACOBS, Trustees of the BRYANT C. DEBOLT
REVOCABLE TRUST,
Defendants-Appellants.
Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.
PER CURIAM.
Defendants, Bryant C. DeBolt, Sr., and Julyette G. Jacobs, as Trustees of the Bryant C.
DeBolt Revocable Trust,1 appeal as of right the order determining the amount of damages and
costs awarded in favor of plaintiff, City of Battle Creek, to abate and remove a nuisance. We
affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On November 27, 2019, plaintiff filed a complaint to abate a public nuisance. It was
alleged that defendant owned and controlled property located at 34 E. Michigan Avenue, Battle
Creek, Michigan. The property consisted of a three-story building fronting E. Michigan Avenue
and a six-story building fronting S. Monroe Street. In October 2018, plaintiff inspected the
property and found maintenance code violations pertaining to wood exposed to the elements and
the need to repair failing brick and stucco siding on the east side. When the violations were not
corrected by June 2019, a ticket was issued in July 2019. Plaintiff alleged that it received pictures
of the property in September 2019, and was notified that the property was quickly deteriorating
1
Although Bryant C. DeBolt, Sr. and Julyette G. Jacobs, were names as co-trustees, Bryant
apparently collected and stored antiques at the property subject to the trust and testified at the
hearing. For ease of reference, the singular defendant refers to Bryant.
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and posed a hazard to pedestrians and occupants of surrounding buildings. Specifically, plaintiff’s
chief building official, Richard Bolek, observed that a portion of the roof was missing and was
open to the elements; the fifth and sixth floors had collapsed and “pancaked” the fourth floor; the
collapsed floors compromised the integrity of the entire structure; a portion of the north wall had
detached and fallen upon the three-story section and neighboring properties; portions of the north
wall and supporting structure were compromised from rot and decay; the exterior was buckling
and cracked; and the six-story portion was in imminent danger of collapse.
Plaintiff alleged that Consumers Energy had to shut down the power to prevent electrical
damage, and this resulted in a loss of power to the entire block, including neighboring properties,
on September 6, 2019. Plaintiff asserted that it installed a temporary fence around the subject and
adjacent buildings as a safety measure at its own expense. On September 9, 2019, electrical service
was restored to the neighboring properties. It was submitted that the property condition was so
severe that demolition was recommended. On October 4, 2019, plaintiff issued an imminent
danger notice advising that the structure was unsafe and constituted a dangerous building
according to plaintiff’s ordinance, § 1454.01(d). On October 21, 2019, a hearing officer declared
the property dangerous and ordered defendant to repair or demolish it by November 19, 2019.
Because defendant did not comply, he was advised that plaintiff would act. Consequently, plaintiff
filed the underlying one-count complaint alleging nuisance and requested a temporary restraining
order requiring that defendant repair or demolish within 20 days. If defendant failed to abate the
nuisance, it was requested that the court authorize plaintiff to demolish the property, place a lien,
and acquire enforcement rights for the costs of demolition.2
The trial court entered an order for preliminary injunction that precluded disposal or
encumbrance of defendant’s property. In August 2020, plaintiff moved for summary disposition
under MCR 2.116(C)(10), requesting that the court declare the property a nuisance and issue an
order protecting taxpayers from the costs of demotion and abatement. Defendant opposed the
request, alleging the dispositive motion was premature and disingenuous because there were on-
going meetings and meaningful efforts to resolve the problems with the property. In
December 2020, the trial court entered an order granting plaintiff’s motion. The written order
stated that “there is no genuine issue of material fact that the six-story tower at 34 E. Michigan
Avenue is a nuisance pursuant to MCL 600.2940, and the tower has been a nuisance since 2019.”
It was ordered that the property shall be demolished and the nuisance abated and that defendant
2
Because defendant’s property was located in a historic district, proceedings were held before
plaintiff’s historic district commission on September 16, 2019. At the hearing, defendant stated,
“I don’t know what to do. Tell me what to do.” Later at the hearing, defendant advised that he
bought the property in 1989 and was promised a liquor license. After the request was not granted,
defendant decided, “I don’t need to do business with [plaintiff].” He also advised that he was
80 years old and needed “some support.” Shortly after the damage hearings concluded, on
September 17, 2021, defendant died because of an accidental drowning in Goguac Lake, a short
distance from defendant’s lakefront property.
(accessed February 9, 2023).
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shall provide a safety plan to enter the property and remove personal property. The order further
provided that: “Defendant shall bear all expenses to abate the nuisance including, but not limited
to, demolition costs and expenses incurred by the Plaintiff to secure the Property.”3
At a subsequent hearing, the trial court took testimony and received a report to address how
the demolition would occur and whether it was safe to enter the premises to remove personal
property. The trial court concluded that “demolition of the tower portion of the building may
proceed forthwith.” It further determined that the tower portion included the ten-feet that
protruded into the middle building despite being part of the tower. The demolition was to be
completed in a manner to leave the middle structure intact if possible. The trial court refused to
permit defendant’s entry into the building to remove personal items because of the risk of collapse.
In March 2021, a hearing was held on plaintiff’s motion for additional costs and to establish
a payment deadline. Plaintiff alleged that a wall covering was necessary on the exposed walls of
the building to ensure the safety of the neighboring properties and the public in general. It was
submitted that the rear wall used to be an interior wall between the middle portion of the building
and the tower. Plaintiff asserted that the wall covering on the rear wall was governed by the trial
court’s prior order to abate the nuisance. And, any changes to the side wall were incidental to the
placement of the temporary wall covering. It was argued that the authority to abate the nuisance
by performing this work was covered by MCL 125.523, and local ordinance § 1454. Plaintiff also
alleged that defendant improperly entered the premises.
In response, defendant disputed that $132,000 was necessary to secure the rear wall,
contending that the demolition company, SC Environmental, failed to properly support certain
walls and created the issue now deemed problematic by plaintiff. It was also asserted that the
demolition crew converted the personal property of defendant and vandalized and removed the
doors on antique bank safes to scrap for valuables. Defendant sought to depose the demolition
company employees to address what happened to other property, such as scaffolding and I-beams,
3
A hearing on the motion for summary disposition was held on November 12, 2020. The trial
court stated that, after reviewing all the evidence presented, numerous code violation and structural
deficiencies existed with the tower that clearly placed any occupants of adjacent buildings and
passersby to a substantial risk of harm. It was concluded that defendant failed to present any
evidence to rebut the fact that the tower constituted a nuisance, was in imminent danger of collapse,
and should be demolished. Therefore, the trial court granted plaintiff’s motion “as it relates to the
tower.” The trial court concluded that the tower was a nuisance “and can be demolished forthwith
pursuant to the contract that was approved by the city commissioners. Furthermore, the Defendant
will bear the cost of that.”
In December 2020, a hearing was held to address what engineers needed to do with the
middle building to demolish the tower and whether to allow defendant to present a safety plan to
remove personal items. Ross Smith, a structural engineer with Wiss, Janney, Elstner & Associates
(WJE), testified regarding his visits to the property, its further deterioration, and the plan to remove
the tower, but save the first two floors of the middle building. Smith opined that defendant could
not safely enter the property to remove personal property until after the tower was removed and
the building was secured from the elements.
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and to retain and depose experts. He requested an evidentiary hearing be scheduled with an
allowance for discovery.
The trial court concluded that the failure to shore up the subject wall would create an
additional nuisance to the middle structure, and it granted plaintiff’s request. It determined that
the expense shall be borne by defendant as part of the nuisance-abatement action. The trial court
advised that defendant could not enter the property until the work was complete and the property
was structurally sound. The trial court concluded that an evidentiary hearing was required to
address payment and timing. It declined to grant discovery at that time.
A continuing dispute between the parties was whether defendant violated the court’s order
and entered the unsafe premises and whether plaintiff’s agents or employees converted the
personal property in the building. However, the trial court did not conduct a hearing regarding
any unauthorized entry by defendant and noted that defendant did not file a counterclaim for
conversion. Consequently, the trial court declined to address those issues.
The trial court conducted multiple hearings and received testimony regarding the work
performed at the property, any personal property taken therefrom, and the payment for the work
performed. Charles Douglas Adams, director of operations for SC Environmental, oversaw the
demolition and cleanup of the property. The demolition crew did their best to secure the property.
Temporary fencing surrounded the area, the equipment that could not be removed was locked, and
the trucks were stored at a separate location. Adams was asked to look for the bank safes possibly
stored in the basement at the premises and found five or six safes on the first floor. The safes were
set aside in the courtyard area, and he denied that the demolition crew removed the doors of the
safes. Adams testified that the company was not permitted to take salvage, items that could be
reused at the premises, but was entitled to remove scrap. If items were taken for scrap, they were
not placed in a landfill, and the demolition company was entitled to retain the scrap proceeds. He
advised that this was the standard in this type of contract. The parties stipulated that SC
Environmental received $3,488.84 from scrap. Adams denied that the demolition crew removed
items such as scaffolding, safe doors, I-beams, and an antique machine gun.
Ted Dearing, plaintiff’s assistant city manager, was familiar with the events pertaining to
defendant’s E. Michigan Avenue property. He testified that, after approval by the city
commission, plaintiff engaged SC Environmental to conduct the demolition of the tower to abate
the nuisance and the final invoice was for $184,624. Plaintiff also paid WJE $39,811.49 for
engineering services. In addition to the payment to those two entities, there were expenses incurred
by plaintiff to have city personnel monitor and work on the project. These expenses included site
visits, material costs, fencing, and other miscellaneous costs. The personnel necessary to address
the property condition included police and fire, department of public works employees, and code
and inspection employees, and their time dedicated to the project was tracked through a work
order. Dearing identified a project transaction report that tracked staff time and expenses of
$12,132.17. Finally, Hackett Construction was contracted to place a wall covering at the property
for $132,000, but it was completed for $118,359.84. The total amount of reimbursement requested
by plaintiff from defendant was $354,927.50.
Dearing acknowledged that plaintiff did not have sufficient general funds available to pay
to abate the nuisance. Consequently, plaintiff sought funding from the City of Battle Creek’s
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Downtown Development Authority (DDA) to pay for the majority of the demolition. On cross-
examination, Dearing testified about the DDA’s involvement:
Q. There have been no general funds of the city used for any of this
demolition project?
A. Well, it- -it’s not accurate that there have been no general fund dollars
in the project as a whole, but there were no general fund dollars in this- -used for
this specific contract.
Q. Okay. Very good. And so, as a result of that, whatever monies were
paid for the demolition project, would have come from the DDA funds, correct?
A. That is correct.
Upon questioning by the court, Dearing acknowledged that the general fund did not have
the budget to pay for the abatement of the nuisance. He also acknowledged there was no formal
written agreement between plaintiff and the DDA, but the meeting minutes recorded their
agreement. Dearing testified:
Q. Well, Mr. Dearing, do you know what the agreement was with the DDA
from your position with [plaintiff]?
A. Yes, I do, You Honor. I am the administrator for the DDA on behalf of
[plaintiff].
Q. Very good. Thank you. Can you tell me what the agreement was
between the DDA and [plaintiff]?
A. . . . Your Honor, I–I am the administrator for [plaintiff] with the DDA.
I was the one that made the request of the DDA to provide funding for this project.
They agreed with the understanding that, if [plaintiff] was to recoup funds from the
building owner, that they would then be reimbursed.
Q. All right. So, this is essentially a loan from the DDA?
A. . . . There is no expectation of being repaid, it’s just that if we are able
to recoup funds, we will reimburse the DDA.
Dearing explained that the DDA was an incremental tax financing authority (TIFA)
primarily within plaintiff’s downtown area that captured incremental tax revenue for the
redevelopment of the downtown area, and defendant’s property was located within the district.
Plaintiff, as the taxing authority, captured the tax and provided financial oversight of the DDA as
a component unit of plaintiff. Plaintiff and the DDA had a cooperative relationship and worked
together to address nuisance properties.
Bolek, plaintiff’s chief building official, discussed the demolition with Adams of SC
Environmental and was initially present for the first day of demolition but left the contractors to
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do their work. The demolition entailed removal of a building that was part of the center and
making it an exterior wall. Therefore, the exterior of the building had to be secured at the
conclusion of the demolition. Additionally, the contract provided that SC Environmental had to
send everything to a landfill unless it was scrapped; however, the demolition company could not
retain items that were salvageable. Bolek described salvaging as taking items from the scene and
reselling them or using them in another fashion while scrapping was recycling items instead of
placing them in a landfill. SC Environmental was told to dispose of items around the building to
complete the demolition without further direction.
A witness to the demolition, John Compton, and defendant testified regarding items
removed from the property and damage to items at the property. Even so, defendant never formally
filed a counterclaim for conversion. Additionally, defendant did not present experts to address the
structure of the building and the propriety of the demolition and remedial actions by SC
Environmental and Hackett Construction.
After multiple hearings, on September 1, 2021, the trial court entered a corrected order
addressing damages. The order provided:
Defendant in the instant case is the owner of a property located in the City
of Battle Creek. In a prior hearing, the property at issue was determined to be a
nuisance and Defendant was ordered to bear the expense of abating the nuisance,
to include the cost of demolition and related expenses incurred by the Plaintiff. In
order to secure and make safe the property in question, the City of Battle Creek
spent a total of $354,927.50.
Plaintiff hired WJE Engineers & Architects, PC to assess the property and
determine the scope of the project. $39,811.49 was paid to WJE for their services.
After the property was assessed, Plaintiff hired SC Environmental Services LLC to
complete the demolition of the nuisance property. The total cost of demolition was
$184,624.00. Additionally, the City of Battle Creek incurred $12,132.17 in
expenses related to fencing, wages, parking passes, and other costs and fees. Per
the testimony of Assistant City Manager Ted Dearing, these expenses were directly
related to the nuisance created by Defendant’s property. At a hearing on March 12,
2021, it was determined that there was a need to construct a temporary wall
covering to preserve the remaining structure. Defendant was ordered to bear the
cost of this addition as part of the nuisance abatement. The total cost for the
temporary wall covering was $118,359.84, owed to Hackett Construction. There
was no testimony or evidence provided by Defendant disputing that these were, in
fact, the amounts paid to abate the nuisance created by allowing it’s [sic] building
to fall into a state of disrepair such that it created a risk of harm to the community.
Defendant argues that the City did not incur the expense for the demolition
of the nuisance property, and therefore, the trust is not obligated to reimburse
Plaintiff. However, the order after summary disposition stated that Defendant
“shall bear all expenses to abate the nuisance, including but not limited to
demolition costs and expenses incurred by the Plaintiff to secure the property.”
There was no language in the order granting Defendant an exception for any costs
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paid by the City with money obtained or borrowed through the Downtown
Development Association, a bank or any other entity. Defendant must bear the cost
of the demolition and all related expenses. Further, Defendant is not entitled to a
credit for the $3,488.00 obtained from that scrapping (or recycling) of materials
[that] is done in the regular course of business and that cleaning up of the demolition
sight [sic] was part of the contract. Finally, Defendant is not entitled to any credit
toward the cost of re-establishing electricity to the building. The electricity was
turned off/removed as part of the nuisance abatement. If Defendant wishes to have
it repaired or reconnected, he may do so at his own cost. It would not have been
necessary to disconnect or remove the electric system if the building had been kept
in an appropriate and safe condition.
Therefore, after hearing testimony, examining the exhibits presented and
reviewing the written pleadings, it is ordered that:
(1) Defendant pay Plaintiff a sum of $354,927.50 of the cost incurred to abate the
nuisance.
(2) The payment of $354,927.50 is to be made on or before September 30, 2021.
(3) Any portion not paid by September 30, 2021 may be secured by lien on any and
all properties held by Defendant trust. These included, but are not limited to: 34 E.
Michigan Avenue, Battle Creek, Michigan; 918 Capital Avenue, SW, Battle Creek,
Michigan; 17 Waweenork [sic] Drive, Battle Creek, Michigan; and Lot No. 72 of
Park Beidler, Calhoun County, Michigan, to include beach reserve rights to Goguac
Lake. Lien may be secured by recording this order, as well as an affidavit from
Plaintiff’s counsel. Plaintiff may, after September 30, 2021, take any necessary
steps to satisfy or execute upon its lien.
(4) Interest shall accrue pursuant to MCL 600.6013.
(5) Defendant shall not transfer or dispose of any property that is owed to Plaintiff
without further order of the court.
From this order, defendant appeals.
II. NUISANCE DAMAGE AWARD4
Defendant alleges that plaintiff could not recover the costs of demolition and to abate the
nuisance because the costs were not “incurred” when the DDA, not plaintiff, supplied the primary
4
We note that defendant did not challenge the trial court’s determination that the tower constituted
a nuisance that must be abated and the grant of summary of summary disposition to plaintiff on
this basis.
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funding for the project. Because of the DDA’s funding, defendant further submits that plaintiff
did not have standing and was not the real party in interest. We disagree.5
A. STANDARDS OF REVIEW
On appeal, the trial court’s factual findings rendered in a bench trial are reviewed for clear
error, but its conclusions of law are reviewed de novo. Florence Cement Co v Vettraino, 292 Mich
App 461, 468; 807 NW2d 917 (2011). “A factual finding is clearly erroneous if there is no
substantial evidence to sustain it or if, although there is some evidence to support it, the reviewing
court is left with the definite and firm conviction that a mistake has been committed.” Miller-
Davis Co v Ahrens Constr, Inc, 495 Mich 161, 172; 848 NW2d 95 (2013). The clear error review
of factual findings also gives deference to the trial court’s superior ability to assess the credibility
of the witnesses. Id. at 172.
This Court reviews de novo the legal question whether a party has standing. Connell v
Lima Twp, 336 Mich App 263, 281; 970 NW2d 354 (2021). Unpreserved issues are reviewed for
plain error affecting substantial rights. Veneskey v Sulier, 338 Mich App 539, 554; 980 NW2d
551 (2021).6 To avoid forfeiture under the plain error rule, an error must have occurred, the error
must be plain, i.e., clear or obvious, and the plain error must affect substantial rights. Marik v
Marik, 325 Mich App 353, 359; 925 NW2d 885 (2018). To establish plain error that affected
substantial rights, the party must demonstrate prejudice by the error such that it affected the
outcome of the proceedings. See Henderson v Dep’t of Treasury, 307 Mich App 1, 9; 858 NW2d
5Generally, to preserve an issue for appellate review, an issue must be raised, addressed, and
decided by the trial court. Hartfiel v City of Eastpointe, 333 Mich App 438, 453; 960 NW2d 174(2020). Defendant challenged the damages incurred by plaintiff in the trial court by alleging that
the DDA’s payment for the demolition and related costs demonstrated that plaintiff was not held
responsible for and did not incur damages. This issue is preserved for appellate review. Defendant
admits that the claims pertaining to standing and real party in interest were not preserved for
appellate review. Although an issue is unpreserved, preservation requirements may be overlooked
if the failure to address an issue would result in manifest injustice, if resolution of an issue is
necessary for a proper determination of the case, or if the issue presents a question of law and the
necessary facts required for resolution of the issue have been presented. Shah v State Farm Mut
Auto Ins Co, 324 Mich App 182, 192-193; 920 NW2d 148 (2018). The appellate court’s inherent
power to review an unpreserved claim of error is to be exercised quite sparingly and exercised
only under compelling circumstances such as to avoid a miscarriage of justice. Id. at 193 citing
Napier v Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987). Defendant does not argue this Court
should exercise its discretion and address the issue of standing and real party in interest because
of compelling circumstances.
6
But see In re Murray, 336 Mich App 234, 240-242; 970 NW2d 372 (2021), wherein this Court
noted that our Michigan Supreme Court had not expressly adopted the plain error affecting
substantial rights standard of People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999), in civil
cases. Therefore, the Murray Court exercised its discretion to address the issue because it
presented a question of law for which all necessary facts were presented. Murray, 336 Mich App
at 242.
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733 (2014). The appellant bears the burden of persuasion with regard to prejudice. In re Knight,
333 Mich App 681, 687; 963 NW2d 676 (2020).
The issue of whether a plaintiff is the real party in interest also presents a question of law
subject to review de novo. Id. When this issue is unpreserved, the review is for plain error. Id.B. PLAINTIFF’S DAMAGES FOR NUISANCE
A nuisance action may arise by common-law, statute, and local ordinance. In Sholberg v
Trumain, 496 Mich 1, 6-7; 852 NW2d 89 (2014), our Supreme Court discussed public nuisance:
A public nuisance involves the unreasonable interference with a right common to
all members of the general public. No better definition of a public nuisance has
been suggested than that of an act or omission which obstructs or causes
inconvenience or damage to the public in the exercise of rights common to all Her
Majesty’s subjects. There is no doubt that nuisance is a tort. In general, even
though a nuisance may exist, not all actors are liable for the damages stemming
from the condition. A defendant held liable for the nuisance must have possession
or control of the land. [Id. (citations, quotation marks, and punctuation marks
omitted).]
The Sholberg Court concluded that liability for a nuisance was not merely premised on ownership
but also control:
To be liable for nuisance, it is not necessary for an individual to own the property
on which the objectionable condition is maintained, but rather, liability for damages
turns on whether the defendant controls the property, either through ownership or
otherwise. A person is liable if he or she knowingly permits the creation or
maintenance of a nuisance on premises of which he or she has control even though
such person does not own the property or even though such person is not physically
present, such as where he or she is an absentee owner. A party who has no control
over the property at the time of the alleged nuisance cannot be held liable therefor.
[Id. at 12-13 (citations omitted).]
An absentee landowner may be responsible for a nuisance when it knowingly permitted the
creation or maintenance of the nuisance on the property. Id. at 13.
To allow meaningful appellate review of the costs incurred in abating a nuisance, the trial
court should engage in a cost-by-cost analysis to ascertain the expenses necessary to properly abate
the nuisance. See Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496,
535-536; 730 NW2d 481 (2007), remanded on other grounds 480 Mich 910; 739 NW2d 622(2007). It should consider the necessity and appropriateness of each incurred expense. Id. at 536.
Indeed, regardless of the type of nuisance, the trial court may abate the nuisance at the expense of
the property owner. Id. at 538, citing MCL 600.2940(3). And, the costs incurred to abate a
nuisance may be collected in the same manner as debt collection on execution. Id. at 538-539.
In addition to a nuisance established at common-law, statutes govern nuisance and
necessary demolition of dangerous buildings.
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Issues involving statutory interpretation present questions of law that are
reviewed de novo. The primary goal of statutory interpretation is to give effect to
the intent of the Legislature. The most reliable evidence of legislative intent is the
plain language of the statute. If the language of the statute is clear and
unambiguous, it is presumed that the Legislature intended the meaning plainly
expressed in the statute. The court’s interpretation of a statute must give effect to
every word, phrase, and clause. Further, an interpretation that would render any
part of the statute surplusage or nugatory must be avoided. Common words and
phrases are given their plain meaning as determined by the context in which the
words are used, and a dictionary may be consulted to ascertain the meaning of an
undefined word or phrase. In construing a legislative enactment we are not at
liberty to choose a construction that implements any rational purpose but, rather,
must choose the construction which implements the legislative purpose perceived
from the language and the context in which it is used. [Le Gassick v Univ of Mich
Regents, 330 Mich App 487, 494-495; 948 NW2d 452 (2019) (citations and
quotation marks omitted).]
MCL 600.29407 addresses actions brought in circuit court to abate nuisances, whether
public or private, and provides:
(1) All claims based on or to abate nuisance may be brought in the circuit court.
The circuit court may grant injunctions to stay and prevent nuisance.
(2) When the plaintiff prevails on a claim based on a private nuisance, he may have
judgment for damages and may have judgment that the nuisance be abated and
removed unless the judge finds that the abatement of the nuisance is unnecessary.
(3) If the judgment is that the nuisance shall be abated, the court may issue a warrant
to the proper officer, requiring him to abate and remove the nuisance at the expense
of the defendant, in the manner that public nuisances are abated and removed. The
court may stay the warrant for as long as 6 months to give the defendant an
opportunity to remove the nuisance, upon the defendant giving satisfactory security
to do so.
(4) The expense of abating and removing the nuisance pursuant to such warrant,
shall be collected by the officer in the same manner as damages and costs are
7
Defendant submitted that MCL 600.2940 only applied to nuisances as defined in
MCL 600.3801(1)(a)-(g), and those subsections address nuisances arising from criminality or
violations of the penal code. Defendant cites no authority for his contention that MCL 600.2940
is limited by MCL 600.3801(1)(a)-(g). When a party announces a position without citing
supporting authority, the issue is deemed to be abandoned. Hooker v Moore, 326 Mich App 552,
557 n 2; 928 NW2d 287 (2018). More importantly, the plain language of MCL 600.2940
addressing nuisance-abatement actions filed in circuit court contains no such limitation. In light
of defendant’s failure to present supporting authority, id., and that his contention is contrary to the
plain language of the statute, Le Gassick, 330 Mich App at 495, we reject his blanket assertion.
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collected upon execution, excepting that the materials of any buildings, fences, or
other things that may be removed as a nuisance, may be sold by the officer, in like
manner as goods are sold on execution for the payment of debts. The officer may
apply the proceeds of such sale to defray the expenses of the removal, and shall pay
over the balance thereof, if any, to the defendant upon demand. If the proceeds of
the sale are not sufficient to defray the said expenses, he shall collect the residue
thereof as before provided.
(5) Actions under this section are equitable in nature unless only money damages
are claimed.
In the present case, plaintiff received complaints regarding the subject property in which
defendant held an interest. An occupant of a neighboring property advised that the building was
subject to the elements and falling debris could injure neighboring properties and pedestrians.
After the inspection of the property and attempts to bring it into compliance failed, a circuit court
action was appropriately filed seeking injunctive relief. MCL 600.2940(1). Although defendant
was given time to remedy the problems and attempts at negotiation with third parties failed,
plaintiff moved for and obtained summary disposition with the trial court concluding that the tower
portion of the building constituted a nuisance. Accordingly, the court ordered plaintiff to abate
the nuisance and remove the nuisance at defendant’s expense. MCL 600.2940(3). The plain
language of MCL 600.2940(3) places no restriction on the type of nuisance subject to abatement,
i.e., public or private, and there is no restriction on the underlying cause of the nuisance, i.e.,
dangerous building or violation of penal code. Plaintiff received bids and sought court
authorization to proceed. By statute, plaintiff’s representative “shall” collect the expense of
abating and removing the nuisance authorized by the court. MCL 600.2940(4). The term “shall”
denotes mandatory action while the word “may” is permissive, and we must apply the ordinary
and accepted meaning of these terms unless to do so would frustrate legislative intent. Cheesman v
Williams, 311 Mich App 147, 151; 874 NW2d 385 (2015). Thus, plaintiff was required to collect
for the expense of abating and removing the nuisance. The plain language of the statute places no
limitation on the expenses or require that they be “incurred.” Accordingly, the trial court did not
clearly err in ordering that the nuisance be abated at the expense of the property owner. Ypsilanti
Fire Marshal, 273 Mich App at 538.
We note that Battle Creek Local Ordinance § 1454.04(f) addresses the cost of demolition
and refers to costs incurred, stating in pertinent part: “The cost of the demolition, of making the
building safe, or of maintaining the exterior of the building . . . incurred by the City to bring the
property into conformance with this chapter, shall be reimbursed to the City by the owner or party
in interest[.]” Defendant submits that plaintiff did not incur any expenses because the DDA paid
for portions of the demolition and to abate. He relies on the term “incur” as defined to mean “[t]o
become liable or subject to, [especially] because of one’s own actions.” See Covenant Med Ctr,
Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 207; 895 NW2d 490 (2017) superseded by
statute. However, it is apparent that plaintiff, not defendant, meets the definition of the term
“incur” because it entered into contractual agreements for services to demolish and abate the
nuisance by removing the tower and taking the debris to a landfill. In exchange for these services,
plaintiff was required to pay SC Environmental and Hackett Construction. The DDA did not enter
into contractual agreements for services; rather, it merely provided a funding source and did not
incur liability as a result of its own actions. Defendant’s challenge is without merit.
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C. STANDING
Defendant further submits that plaintiff did not have standing to pursue the action because
the DDA provided the funding to abate the nuisance. We disagree.
Standing generally references a plaintiff’s right to invoke the trial court’s power to
adjudicate a claimed injury. Connell, 336 Mich App at 289. In Trademark Prop of Mich, LLC v
Fannie Mae, 308 Mich App 132, 136-137; 863 NW2d 344 (2014), this Court explained the
doctrine of standing:
The purpose of the standing doctrine is to assess whether a litigant’s interest in the
issue is sufficient to ensure sincere and vigorous advocacy. That is, the objective
of the standing requirement is to ensure that only those who have a substantial
interest will be allowed to come in to court to complain. When a party’s standing
is challenged in a case, the question is whether that person is a proper party to
request adjudication of the issue, not whether the issue is justiciable. Standing in
no way depends on the merits of the case. When a cause of action exists under law,
or when the Legislature has expressly conferred standing, those circumstances are
sufficient to establish standing. [citations and quotation marks omitted.]
In Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010), our
Supreme Court addressed how to determine whether a litigant has standing:
We hold that Michigan standing jurisprudence should be restored to a limited,
prudential doctrine that is consistent with Michigan’s longstanding historical
approach to standing. Under this approach, a litigant has standing whenever there
is a legal cause of action. Further, whenever a litigant meets the requirements of
MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment.
Where a cause of action is not provided at law, then a court should, in its discretion,
determine whether a litigant has standing. A litigant may have standing in this
context if the litigant has a special injury or right, or substantial interest, that will
be detrimentally affected in a manner different from the citizenry at large or if the
statutory scheme implies that the Legislature intended to confer standing on the
litigant.
“A public nuisance is an unreasonable interference with a common right enjoyed by the general
public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297(1994).
The term “unreasonable interference” includes conduct that (1) significantly
interferes with the public’s health, safety, peace, comfort, or convenience, (2) is
proscribed by law, or (3) is known or should have been known by the actor to be of
a continuing nature that produces a permanent or long-lasting, significant effect on
these rights. A private citizen may file an action for a public nuisance against an
actor where the individual can show he suffered a type of harm different from that
of the general public . . . .
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In general, even though a nuisance may exist, not all actors are liable for the
damages stemming from the condition. A defendant is liable for a nuisance where
(1) the defendant created the nuisance, (2) the defendant owned or controlled the
land from which the nuisance arose, or (3) the defendant employed another person
to do work from which the defendant knew a nuisance would likely arise. [Id. at
190-191 (citations omitted).]
“A violation of a zoning ordinance constitutes a public nuisance that, by itself, ‘gives no right of
action to an individual and must be abated by the appropriate public officer.’ ” Ansell v Delta Co
Planning Comm, 332 Mich App 451, 461; 957 NW2d 47 (2020). Claims to abate a nuisance must
be brought in circuit court, MCL 600.2940(1), and the court may order a government officer to
abate the nuisance at the defendant’s expense, MCL 600.2940(3).
Defendant does not dispute that plaintiff claims common-law, statutory, and local
ordinance violations arising from the condition of the subject building that constitute a public
nuisance. The zoning ordinance violation, as a public nuisance, must be abated by plaintiff.
Ansell, 332 Mich App at 461. Standing is not contingent on the merits of the case, but rather, when
a cause of action exists under law, such as for public nuisance, that is sufficient to establish
standing. See Lansing Sch Ed Ass’n, 487 Mich at 372. Defendant does not dispute that a nuisance
was presented, and he does not dispute that two contractors were engaged to remove the tower and
to secure the premises. Rather, he complains that because plaintiff did not provide the general
funds to its contractors, but obtained the funding from the DDA, it did not “incur” the expense.
Regardless of whether plaintiff could meet its evidentiary proofs to support recovery, plaintiff had
standing to bring the action for public nuisance. Ansell, 332 Mich App at 461; see also
MCL 600.2940(1) and (3). The challenge to standing is without merit.
D. REAL PARTY IN INTEREST
Defendant also contends that plaintiff was not the real party in interest because the DDA
provided the funding for the demolition and abatement. Again, we disagree.
An action must be prosecuted in the name of the real party in interest[.]” MCR 2.201(B).
To be the real party in interest, the party must be vested with a right of action to a given claim,
even if the beneficial interest lies with another. Bd of Trustees v City of Pontiac, 309 Mich App
611, 621; 873 NW2d 783 (2015).
Defendant submits the same argument with regard to damages and standing to the question
of who is the real party in interest: because the DDA paid for the demolition and abatement of the
nuisance, it was the real party in interest. However, by statute, MCL 600.2940(4) (“The expense
of abating and removing the nuisance pursuant to such warrant, shall be collected by the officer in
the same manner as damages and costs are collected upon execution . . .”) and local ordinance
§ 1454.04(f), (“The cost of the demolition, of making the building safe, or of maintaining the
exterior of the building or structure or grounds adjoining the building or structure, incurred by the
City to bring the property into conformance with this chapter, shall be reimbursed to the City by
the owner or party in interest in whose name the property appears.”), plaintiff was charged with
abating and removing a nuisance, and therefore, it follows that plaintiff may bring a public
nuisance suit to compel performance and payment from the defendant that created the condition.
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The DDA is not the entity charged with abating nuisances. Rather, the DDA is an entity that
utilizes “captured” tax increases to fund properties within a particular district. See Village of Holly
v Holly Twp, 267 Mich App 461, 463; 705 NW2d 532 (2005). Accordingly, defendant’s claim
that plaintiff is not the real party in interest is without merit.
III. COMPUTATION OF DAMAGES
Defendant contends that the trial court erred in awarding as costs of abatement the general
overhead costs and wall covering and in allowing SC Environmental to retain funds received from
scrapping. We disagree.
“Where a court following a bench trial has determined the issue of damages, we review the
award for clear error.” Marshall Lasser, PC v George, 252 Mich App 104, 110; 651 NW2d 158(2002). A nonjury award will not be set aside merely premised on a difference of opinion. Id.Clear error exists where, after a review of the record, the reviewing court is left with a firm and
definite conviction that a mistake has been made.” Id.A damage award is not clearly erroneous where the damage award was within the range of
the evidence presented, and the trial court was aware of the issues in the case and appropriately
applied the law. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 513; 667 NW2d 379 (2004).
If damages are speculative or premised on conjecture, they are not subject to recovery. Chelsea
Investment Group LLC v Chelsea, 288 Mich App 239, 255; 792 NW2d 781 (2010). Damages need
not be calculated with mathematical certainty; it is sufficient when a reasonable basis for
computation exists. Id. Additionally, any certainty requirement is relaxed when the fact of
damages has been established, and the only issue to be determined is the amount of damages.
Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 525; 687 NW2d 143 (2004). Questions of
what damages might reasonably be anticipated in a tort action is appropriately left to the fact-
finder. Id. Precision in damages will not be required when, from the nature of the circumstances,
precision is not attainable. Purcell v Keegan, 359 Mich 571, 576; 103 NW2d 494 (1960). This is
particularly true when the defendant’s own act or negligence caused the imprecision. Id.Battle Creek Local Ordinance § 1454.04(f) addresses cost of demolition and provides:
The cost of the demolition, of making the building safe, or of maintaining
the exterior of the building or structure or grounds adjoining the building or
structure, incurred by the City to bring the property into conformance with this
chapter, shall be reimbursed to the City by the owner or party in interest in whose
name the property appears. The cost of demolition, making the building safe, or
of maintaining the exterior of the building or structure and grounds adjoining the
building or structure includes but is not limited to, fees paid to hearing officers,
costs of title searches or commitments used to determine the parties in interest,
recording fees for notices and liens filed with the County Register of Deeds,
demolition and dumping charges, court reporter attendance fees, and costs of the
collection of the charges authorized under this chapter, including but not limited to
the costs of placarding and vacating a dangerous building. [Emphasis added.]
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Defendant contends that the trial court clearly erred in awarding overhead costs, including the
costs of employees supervising the project because Dearing’s testimony was uncertain and
speculative. However, Dearing testified that the employees prepared their time cards and allocated
the amount of time expended on this project. Additionally, he testified that the time spent on this
project, by employees of police, fire, and rescue, was time taken away from other responsibilities.
Dearing did not have personal knowledge of each employee’s work at the project. But, because
the employees correlated their time to this project, the finance department prepared a project
transaction report in the ordinary course of business that served as the basis for Dearing’s
testimony. Dearing further acknowledged that there were miscellaneous charges for other items
such as parking, register of deed fees, etc.
Defendant contends that, in criminal cases, a defendant cannot be charged for the costs of
the investigation or the operation of the probation department. In the present case, however,
plaintiff has an ordinance that expressly provides that operational charges, such as fees charged by
the register of deeds, are costs incurred by plaintiff and recoverable from the property owner.
Moreover, the local ordinance notes that the cost items delineated served as examples and was not
confined to those items. Under the circumstances, the trial court did not clearly err in its award of
general overhead expenses. While it may be improper to render such an award in the context of
criminal cases, by statute and local ordinance, a property owner becomes responsible for
miscellaneous charges incurred by the government entity remediating the nuisance.
Next, defendant asserts that the $132,000 wall covering was not an expense required for
the demolition and necessary to abate the nuisance. We disagree. As noted, this building included
a tower that collapsed and the fifth and sixth floors had pancaked into the lower levels. The trial
court only ordered that the tower constituted a nuisance. Thus, the engineers and demolition crew
acted to remove the tower while causing as little impact to the remaining structures as possible.
When an evaluation of the tower occurred, plaintiff’s representative apprised the trial court that
the collapse would require action pertaining to ten-feet into the middle building. After this initial
work was performed, it was determined that a wall covering was required to prevent the remainder
from becoming a nuisance. Specifically, the wall covering was necessary to address the exposed
walls of the building and to ensure the safety of the neighboring properties and the public in
general. The trial court concluded that the failure to shore up the additional wall would create an
additional nuisance to the middle structure, and it granted plaintiff’s request to add the temporary
walls.
Defendant now protests the necessity of this expense, but he did not present any expert
testimony to contradict the assertion by plaintiff and its representatives that the wall covering was
required to abate the nuisance. In light of defendant’s failure to contradict the evidence presented,
we cannot conclude the trial court’s factual findings pertaining to the wall covering were clearly
erroneous.
Lastly, defendant contends that the trial court erred in failing to order that the scrap metal
funds received by SC Environmental in the amount of $3,488.84 should be given to defendant.
We disagree.
The testimony elicited at the evidentiary hearings demonstrated that SC Environmental was
entitled to remove debris from the premises, was not entitled to salvage items from the property,
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but was granted the opportunity to scrap from the debris. Scrapping consisted of preventing items
from being taken to a landfill. Adams denied that the demolition crew removed items of value,
such as scaffolding, safe doors, and I-beams, from the premises. Bolek testified that that actions
by SC Environmental were consistent with the contract and their directions. Moreover, the trial
court apprised defendant that he could formally pursue an action for conversion of personal
property. Under the circumstances, we cannot determine that the trial court clearly erred.
Affirmed. Plaintiff, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Douglas B. Shapiro
/s/ Anica Letica
/s/ Kathleen A. Feeney
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