SAFA JUNDY V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
SAFA JUNDY and FADWA JUNDY,
UNPUBLISHED
July 27, 2004
Plaintiffs-CounterdefendantsAppellees,
v
No. 248389
Wayne Circuit Court
LC No. 02-207409-CZ
CITY OF DETROIT,
Defendant-CounterplaintiffAppellant.
Before: Murphy, P.J., and Griffin and White, JJ.
PER CURIAM.
Plaintiffs filed a three-count complaint, alleging causes of action for gross negligence,
trespass, and trespass-nuisance with respect to defendant city’s actions in razing and demolishing
plaintiffs’ party store that had previously been damaged in a fire. Defendant city filed a
counterclaim, seeking the costs of demolition. Defendant appeals as of right an order denying
its motion for summary disposition, with regard to plaintiffs’ complaint and its counterclaim, and
granting summary disposition in favor of plaintiffs on their complaint and defendant’s
counterclaim.1
We conclude that governmental immunity did not bar plaintiffs’
trespass/trespass-nuisance claims pursuant to Pohutski v City of Allen Park, 465 Mich 675; 641
NW2d 219 (2002), and that the trial court properly entered judgment in favor of plaintiffs on the
complaint and counterclaim because no genuine issues of material fact existed and plaintiffs
were entitled to judgment as a matter of law, MCR 2.116(C)(10). Accordingly, we affirm.
I. Complaint and Counterclaim
Plaintiffs’ complaint was filed on March 5, 2002, a date which has a significant impact
on the governmental immunity analysis as discussed infra. Plaintiffs alleged that they owned a
structure located at 6800 Kercheval in the city of Detroit that was known as the Concord Market,
1
The trial court did summarily dismiss plaintiffs’ gross negligence claim after plaintiffs
conceded that such an action could not be maintained against the city, as opposed to city
employees, under MCL 691.1407.
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and which was demolished by defendant in November 2000. The market suffered substantial
fire damage on September 11, 1998, and plaintiffs were forced to close the facility until it could
be repaired. Plaintiffs alleged that during the time period of September 11, 1998, to the
demolition in November 2000, they were engaged in negotiations with their insurance company
regarding the damaged property and taking bids to perform the necessary repairs.
Plaintiffs claimed that defendant, without authority, notice, or permission, entered the
premises of the Concord Market and demolished the structure, and in the process, defendant also
destroyed numerous items of personal property located in the market. As noted above, plaintiffs
alleged causes of action for gross negligence, trespass, and trespass-nuisance.
Defendant responded in its answer and affirmative defenses that it was lawfully on the
premises and that it lawfully demolished the building pursuant to the Dangerous Building
Ordinance 290-H, 1984 Detroit City Code, § 12-11-28.0 et seq. Defendant city also filed a
counterclaim, alleging that on July 28, 2000, the city inspected the subject property and
determined that the market constituted a dangerous building under § 12-11-28.0 et seq.
Subsequently, defendant served a notice of hearing regarding the dangerous building
determination on the “owner of record.” Later, a hearing was conducted, and the hearing officer
recommended that remedial action be undertaken. Defendant then issued an order that the
dangerous building be demolished. Defendant further alleged that a demolition permit was
procured on October 30, 2000, and that, following additional inspections confirming the
dangerous nature of the market and having received no response by the record owner, the
building was destroyed in mid-November 2000. The demolition cost to the city was $12,146,
and defendant sought compensation for the cost from plaintiffs pursuant to city ordinance.
II. Summary Disposition, Documentary Evidence, and the Trial Court’s Ruling
Defendant filed a motion for summary disposition, arguing that the city was immune
from liability, that the city could not be guilty of trespass because it was authorized to enter and
demolish plaintiffs’ property, and that the city was entitled, as a matter of law, to recover the cost
of the demolition. Defendant contended that the notice of demolition was sent to the address
shown on the tract index on record with the Wayne County Register of Deeds, which was “the
same address used for the taxpayer of record,” and that it complied with the notice provision of
§ 12-11-28.4. Defendant also argued that “[e]ven though plaintiff[s] had adopted a new address
for subsequent tax years, the address of record at the time of the order to demolish was used by
the city.” The motion contained claims that the market was first inspected on August 21, 1999,
on the basis of a complaint by a neighborhood resident, and that the market was found
barricaded. The July 28, 2000, inspection found that one of the brick walls of the building had
been stripped and that the building was a structural hazard and should be demolished on an
emergency basis as permitted by § 12-11-29.1. Defendant maintained that it was demolished on
an emergency basis.
In response, plaintiffs argued that, prior to the demolition and during the notice period,
they had paid the property taxes on the market property and they had engaged in active, ongoing
discussions and communications with the city on the purchase of three adjoining lots and the
expansion of the market, which communications included the city corresponding with plaintiffs
on several occasions by sending mail to a correct Warren, Michigan address. Further, plaintiffs
had never seen any notice posted on the market, they sent the city notice of their Warren address
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for purposes of tax bill and assessment mailings relative to the subject property, and the tax rolls
on the property reflected the Warren address.
According to plaintiffs, despite the city’s
knowledge of plaintiffs’ correct address, the city sent notices regarding demolition by certified
mail on August 22, 2000, to the address of the fire-damaged property, where no one was
residing, and to a ten-year-old prior address of plaintiffs, and these notices were returned as
undeliverable. Plaintiffs requested that the trial court grant summary disposition in their favor
on the trespass/trespass-nuisance claims and on defendant’s counterclaim for demolition costs.
In a reply brief, defendant contended that it pursued demolition of the market property on
an emergency basis under § 12-11-29.0 et seq. of the city code and was thus not under any
obligation to provide notice. It was argued, therefore, that assuming without conceding that the
notice was deficient, defendant acted properly and its actions did not constitute trespass/trespassnuisance.
Our review of the documentary evidence submitted by the parties reveals a March 2,
1999, letter from the Detroit Planning & Development Department (hereinafter “planning
department”) that was addressed to plaintiffs at the Warren address and regarded the potential
purchase of lots surrounding the parcel on which the market was located. In fact, the market
address at 6800 Kercheval is crossed out in the letter with the Warren address written in. The
record also contains a June 2000 interoffice memorandum of the planning department reflecting
a $730 good-faith deposit on the surrounding lots paid by plaintiffs.
Further, there is a
September 20, 2000, letter from the planning department mailed to plaintiffs at their Warren
address, which states, in part:
On July 25, 2000, the City Planning & Development Department
conducted a site visit of the properties you requested to purchase at 1820
Concord. The Concord Market has been destroyed by fire damage. What is your
planned use of the properties?
The record also contains letters dated September 27 and October 3, 2000, sent by the
planning department to plaintiffs at the Warren address regarding property purchases. There are
several letters from plaintiffs to the planning department containing plaintiffs’ Warren address.
Plaintiffs additionally submitted a handwritten letter sent by plaintiffs to the city, stamp-dated
August 12, 1999, which indicated their ownership of the market and informed the city to “change
the mailing address for all tax bills and statements to” the Warren address. The trial court
further received the following documents: an undated 2000 tax assessment notice or statement
concerning the taxes on the market property covering December 1, 2000, to November 30, 2001,
mailed by the city to the Warren address; 1997-1999 city income tax documents for plaintiffs
mailed to the Warren address; an undated emergency demolition request from the Detroit
Buildings and Safety Engineering Department (hereinafter “buildings department”) to the Detroit
Department of Public Works regarding the market property; an August 18, 2000, emergency
demolition request from the buildings department to the city council,2 and copies of certified
2
This request provides in relevant part:
(continued…)
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mail receipts showing attempted and failed delivery of notices to plaintiffs at an old address and
at the market address. The notices were mailed out on August 22, 2000.
Plaintiffs also submitted an affidavit of a former employee of the market who lived in the
neighborhood where the market was located. The affiant stated that plaintiffs continued to
employ him after the fire by having him keep an eye on the fire-damaged market. The affiant
asserted that he walked by and examined the building on a daily basis and never observed any
type of notice on the structure. Finally, plaintiffs submitted a portion of a deposition transcript
relative to the deposition of Abdul-Musawwair Aquil, an assistant chief in the buildings
department, who testified with regard to the notice procedure utilized by the city prior to
demolition.
Q. Would they use the Wayne County information as to who has paid the taxes
and what address they have for that person to send notices to, if you know?
A. No.
Q. If it’s the owner of the building they wouldn’t?
A. Well, it’s just not checked.
Q. What do you mean it’s not checked?
A. Well, we’re only – our processes only require us to check the addresses at the
Wayne County Register of Deeds and send notification to the holders of the
warranty deed or those who have – may have the lien or such interest in the
property.
Q. All right. So you may use an address on a warranty deed that’s 30 years old?
A. Yes.
Q. And you don’t check the tax rolls to make sure that that person hasn’t moved?
A. It hasn’t been part of our procedures.
Defendant city presented the affidavit of a finance department employee who averred that
the 1999 and 2000 county tax rolls reflected that the address for the taxpayer of record regarding
the market property was the same address as the market. The employee further averred that to
change the tax assessment records regarding the address of the taxpayer of record, it was
(…continued)
It is our opinion that there is an actual and immediate danger affecting the
health, safety and welfare of the public. Therefore, under the authority of
Ordinance 290-H, we request that the Department of Public Works immediately
take emergency measures to have this building or portions thereof removed with
the cost assessed against the property.
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necessary to use a preprinted governmental form. Finally, the finance department employee
asserted that the taxpayer of record for the market property in August 2000 had the same address
as the market property; the notices of demolition were sent out in August 2000. Supporting
documentation was attached to the affidavit which was submitted as part of defendant’s reply
brief.
The relevant provisions of the Dangerous Building Ordinance 290-H, 1984 Detroit City
Code, read as follows:
Section 12-11-28.4(a).
Notwithstanding any other provisions of this ordinance, when the whole or
any part of any building or structure is found to be a dangerous building, the
Building Official shall issue a notice to the owner or owners of record that the
building or structure is a dangerous building and to appear before a hearing
officer, who shall be appointed by the Building Official, to show cause at the
hearing why the building or structure should not be demolished, repaired, or
otherwise made safe. All notices shall be in writing and shall be delivered by an
agent of the department, or shall be sent by registered or certified mail, return
receipt requested, to the last known address of such owner or owners. In
determining the last known address of the owner(s), the department shall examine
the records of the last City of Detroit and County of Wayne tax assessment, and
the records of the County of Wayne Registrar of Deeds. If an owner cannot be
located after a diligent search, the notice shall be posted upon a conspicuous part
of the building or structure.
Section 12-11-29.2.
When in the opinion of the building official, there is actual or immediate
danger of collapse or failure of a building or structure or any part thereof or where
such other conditions exist which would endanger life, or constitute a hazard to
the general public, he shall cause the necessary work to be done to abate the
dangerous condition, whether or not the legal procedure herein described has been
instituted.
The parties presented oral argument, and the trial court, clearly exasperated by the city’s
failure to provide notice to the Warren address and its reliance on sending the notice to the
burned-out market where no one residing, ruled in plaintiffs’ favor in cursory fashion, adopting
plaintiffs’ position on the matters presented. Judgment was entered in favor of plaintiffs on the
trespass/trespass-nuisance claims, the gross negligence claim was dismissed, and defendant’s
claim for recovery of demolition costs was summarily dismissed.
Defendant appeals as of right, arguing that plaintiffs’ trespass/trespass-nuisance claims
are barred by governmental immunity, that the city cannot be held liable for trespass/trespassnuisance because the demolition was authorized by law, and that the city is entitled to recover
the costs of demolition as a matter of law.
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III. Analysis
A. Standards of Review and Summary Disposition Tests
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Koenig v City of South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999). Issues of law are also
reviewed de novo. Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104
(1997).
MCR 2.116(C)(7) tests, in part, whether claims are barred due to immunity granted by
law. Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998). The contents of the
complaint are accepted as true unless contradicted by documentation submitted by the moving
party. Pusakulich v City of Ironwood, 247 Mich App 80, 82; 635 NW2d 323 (2001). In
analyzing a motion for summary disposition pursuant to MCR 2.116(C)(7), the trial court must
consider all affidavits, depositions, admissions, or other documentary evidence if submitted or
filed by the parties. Id. When facts material to the immunity claim are not disputed, the issue
becomes whether the defendant is entitled to immunity as a matter of law. Gilliam v Hi-Temp
Products, Inc, 260 Mich App 98, 108-109; 677 NW2d 856 (2003).
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue as
to any material fact, and the moving party is entitled to judgment or partial judgment as a matter
of law. Our Supreme Court has held that a trial court may grant a motion for summary
disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that
there is no genuine issue in regard to any material fact. Quinto v Cross & Peters Co, 451 Mich
358, 362; 547 NW2d 314 (1996). The moving party has the initial burden of supporting its
position by affidavits, depositions, admissions, or other documentary evidence. Id. The burden
then shifts to the party opposing the motion to establish that a genuine issue of disputed fact
exists. Id. All affidavits, pleadings, depositions, admissions, and other documentary evidence
filed in the action or submitted by the parties are viewed in a light most favorable to the party
opposing the motion. Id.
Where the burden of proof on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere allegations or denials in the
pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine
issue of material fact exists. Id. If the opposing party fails to present documentary evidence
establishing the existence of a material factual dispute, the motion for summary disposition is
properly granted. Id. at 363.
B. Governmental Immunity
Defendant argues that plaintiffs’ trespass/trespass-nuisance claims are barred by
governmental immunity. It is unnecessary for us to explore in detail defendant’s argument
because our Supreme Court’s ruling in Pohutski, supra, a case not addressed or acknowledged by
defendant, clearly dictates our course. The Michigan Supreme Court, overruling Hadfield v
Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988), and its progeny, held:
[T]he plain language of the governmental tort liability act does not contain
a trespass-nuisance exception to governmental immunity. Trespass-nuisance
simply is not one of the five exceptions to immunity set forth in the governmental
tort liability act. As stated above, we are bound by the clear and unambiguous
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statutory text; we lack constitutional authority to impose on the people of this
state our individual policy preferences regarding the availability of lawsuits
arising from the operation of a sewage system. We must “seek to faithfully
construe and apply those stated public policy choices made by the Legislature” in
drafting the governmental tort liability act. We are mindful that, because
immunity necessarily implies that a “wrong” has occurred, some harm caused by
a governmental agency may lack a remedy. Although governmental agencies
have many duties regarding the services they provide to the public, a breach of
those duties is compensable under the statute only if it falls within one of the
statutorily created exceptions. [Pohutski, supra at 689-690 (citations omitted).]
The Supreme Court, however, held that its ruling was prospective and “will be applied
only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation
set forth in Hadfield will apply.” Id. at 699. Here, plaintiffs’ complaint was filed on March 5,
2002. Accordingly, Hadfield applies, and, as stated by the Pohutski Court, Hadfield concluded
that recognition of the historic trespass-nuisance exception to governmental immunity was
required by the language of MCL 691.1407. Pohutski, supra at 685. The Hadfield Court held
that, “[b]ecause the concepts of trespass and ‘classic’ nuisance are so close, we include both
trespass and trespassory nuisance within the exception adopted today.” Hadfield, supra at 151.
Plaintiffs’ trespass/trespass-nuisance claims, therefore, are not barred under principles of
governmental immunity.
C. Trespass/Trespass-Nuisance
Defendant argues that it cannot be held liable for trespass/trespass-nuisance because the
demolition was authorized by law and it complied with the demolition procedures set forth in the
ordinance.
Trespass arises where there is an invasion or intrusion of a landowner’s interest in the
exclusive possession of his land. Hadfield, supra at 151. Nuisance arises, in general, where
there is an interference with a property owner’s use and enjoyment of his property. Id.
“Trespass-nuisance shall be defined as trespass or interference with the use or enjoyment of land
caused by a physical intrusion that is set in motion by the government or its agents and resulting
in personal or property damage.” Id. at 169. The elements of a trespass-nuisance cause of
action are: “condition (nuisance or trespass); cause (physical intrusion); and causation or control
(by government).” Id.
Trespass is an unauthorized intrusion or invasion, Douglas v Bergland, 216 Mich 380,
384; 185 NW 819 (1921), and “[n]ormally, a public officer who is on the premises of another
pursuant to legal authorization is not liable for trespass[,]” Antkiewicz v Motorists Mut Ins Co, 91
Mich App 389, 396; 283 NW2d 749 (1979), vacated in part on other grounds 407 Mich 936; 285
NW2d 659 (1979). See also Antonian v City of Dearborn Heights, 224 F Supp 2d 1129, 11431144 (ED Mich, 2002); Fruman v Detroit, 1 F Supp 2d 665, 675 (ED Mich, 1998). There is
liability, however, when the public officer acts in excess of his authority, such as where he does
not comply with city code or an ordinance. Antkiewicz, supra at 396; Antonian, supra at 1144;
Fruman, supra at 675. We recognize that simply because an ordinance or code authorizes a
particular action, it does not necessarily make the action lawful, even where there is full
compliance with the ordinance or code, where the provision is enacted in excess or in violation
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of statutory or constitutional authority. But no such claims are made here, and our focus is on
whether defendant complied with the ordinance, and more particularly whether defendant
complied with the applicable notice provisions. Of course, our analysis is also made within the
framework of a (C)(10) motion.
Section 12-11-28.4(a) touches on delivery of notice to the “last known address,”
examination of tax assessment and register of deeds records, and the exercise of a diligent
search. It appears that the notices, sent in August 2000, were mailed to addresses predicated on
deed records that matched, at the time, tax roll addresses. On the other hand, it is arguable that
the “city” was aware of a proper “last known address,” which deviated from the tax and deed
records, where for two plus years the planning department mailed correspondence to the Warren
address, and where plaintiffs, in August 1999, mailed a change of address request to the city for
tax purposes relative to the market property. Despite the fact that the change of address was not
made pursuant to proper procedure through the use of governmental forms, there is no indication
that the city did not receive the handwritten paperwork. Apparently, one arm of the city, the
buildings department, was not aware of well-known information held by another arm, the
planning department, with respect to plaintiffs’ Warren address. We note our full appreciation
of the complexity of city government in high-density population centers such as Detroit and the
overwhelming job involved in monitoring dilapidated and dangerous buildings located
throughout the large city.
We find it unnecessary to determine whether defendant exercised diligence in
ascertaining an address, whether the buildings department, and hence the city, should be held
knowledgeable of address information known to the city’s planning department, whether all that
was necessary was use of deed and tax records, or whether genuine issues of material fact exist
on these matters. It is unnecessary because of the last sentence in § 12-11-28.4(a), which
provides that “[i]f an owner cannot be located after a diligent search, the notice shall be posted
upon a conspicuous part of the building or structure.” (Emphasis added.) The owners could not
be located as reflected in the certified mailings that came back undeliverable, and, assuming a
diligent search, it was incumbent on defendant to post the notice on the building. Defendant,
however, submitted no evidence that any notice was placed or posted on the market. At oral
argument below, this point was essentially conceded by defense counsel as indicated on
questioning by the trial court.
Q. Well, where did you attach the notice?
A. That I do not know. I don’t know if there was notice attached quite frankly,
Your Honor.
Moreover, plaintiffs employed an individual to keep an eye on the building during the
intervening two years between the fire and demolition, and this individual submitted an affidavit,
averring, in relevant part:
4. [I] had occasion to walk by and examine the building on a daily basis.
5. That at no time prior to the demolition of the Concord Market on November
15, 2000, was any type of notice ever posted on the Concord Market.
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In light of the evidence presented at summary disposition, there is no genuine issue of
fact that defendant failed to post a notice on the market as required by the ordinance; therefore, it
lacked legal authority, under § 12-11-28.4(a), to intrude on the property owned by plaintiffs and
demolish the building. Accordingly, the city’s actions constituted trespass/trespass-nuisance.3
Had defendant posted the required notice, it most likely would have been observed by plaintiffs’
employee, and the whole incident could have been avoided.
Defendant argues that it was not proceeding under § 12-11-28.4(a) but rather § 12-1129.0 et seq., which governs emergency demolitions. Section 12-11-29.2 does authorize the city
to abate a dangerous condition that needs urgent attention in order to avoid a danger to the
public, “whether or not the legal procedure herein described has been instituted.” Defendant
submitted two documents indicating a request for emergency demolition made to the city council
and the public works department. One of the requests is undated and the other is dated August
18, 2000, which is approximately an entire month after the July 2000 inspection that ultimately
lead to the alleged emergency demolition. Regardless, the record indicates that irrespective of a
request for emergency demolition, the procedure that was actually implemented was consistent
with § 12-11-28.0 et seq. As reflected in defendant’s counterclaim4, this included the mailing of
notices, the holding of a show cause hearing, the entering of a decision and recommendation by
the hearing officer following hearing, and the issuance of a demolition order by the city council.
See § 12-11-28.4. The actual demolition occurred nearly four months after the July 2000
inspection. The city did not pursue this matter as an emergency demolition under § 12-11-29.0
et seq., and it cannot now claim that it did so in order to avoid the failure of proper notice. We
also note that defendant’s answer and affirmative defenses reference and place reliance solely on
§ 12-11-28.0 et seq., calling into question defendant’s claim that § 12-11-29.0 et seq. controlled
and suggesting a waiver of any defense premised on legal authorization without necessity to
provide notice. MCR 2.111(F)(3)(b)&(c). The trial court did not commit error. In light of our
3
In Fruman, the city of Detroit incorrectly sent out eight notices of hearings and/or demolition to
the address of the property to be demolished, while being aware of the plaintiff’s correct
Dearborn address based on the plaintiff changing his address on the city tax rolls and tax notices
being sent to the Dearborn address. The federal district court found the city liable for trespass in
demolishing the property, where the city failed to mail the notices to the last known address,
failed to perform a diligent search to ascertain the plaintiff’s whereabouts, and failed to post any
notices. Fruman, supra at 675. In the context of its discussion regarding a procedural due
process violation, the court stated that “to the extent that the City contends that its demolition of
Plaintiff’s building was lawful under the Ordinance because Plaintiff could not be located, there
is no evidence that the City ‘conspicuously posted’ any of the notices on the Gratiot building as
provided in the Ordinance.” Id. at 672.
4
Defendant’s counterclaim provided in part:
7. On or after that date, Counter-Plaintiff City of Detroit served a notice of
hearing regarding these findings on the owner of record.
8. On or after that date, a hearing was held on the finding of a dangerous
building, and the hearing officer recommended that remedial action be taken.
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conclusion that defendant lacked proper lawful authority to demolish plaintiffs’ market, there is
no basis for defendant to recover its demolition costs as requested in the counterclaim, and that
claim was properly dismissed.
Affirmed.
/s/ William B. Murphy
/s/ Richard Allen Griffin
/s/ Helene N. White
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