THOMAS J GAWRYCH V MARK RUBIN
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS J. GAWRYCH and CAROL A.
GAWRYCH,
UNPUBLISHED
October 26, 2004
Plaintiffs/Counter-DefendantsAppellants,
v
No. 247744
Alcona Circuit Court
LC No. 99-010306-CE
MARK RUBIN,
Defendant/Counter-PlaintiffAppellee.
Before: Murphy, P.J., and Sawyer and Markey, JJ.
PER CURIAM.
In this case involving claims for abatement of a public nuisance and trespass, plaintiffs
appeal as of right from an order of the circuit court denying their motion for reconsideration.
Previously, the court had summarily dismissed plaintiff’s nuisance claim, riparian rights trespass
claim, claim for treble damages under MCL 600.2919, and partially dismissed plaintiffs’ claim
for breach of subdivision restrictions. The court granted plaintiffs partial summary disposition
on their claim for trespass onto their property and awarded damages in the amount of $733.50.
The court then granted plaintiffs’ motion for voluntary dismissal of all remaining claims, but
conditioned it on the payment of defendant’s taxable costs and reasonable attorney fees, which,
in its order denying plaintiffs’ motion for reconsideration, the court assessed to be $3500. We
reverse and remand.
Plaintiffs own a home with a view of Lake Huron, located across the road from three lots
owned by defendant. Plaintiffs also own a lot on the other side of the road, adjacent to one of
defendant’s three lots. In violation of a local zoning ordinance, defendant built a second pole
barn on the lot adjacent to plaintiffs’ lot. Plaintiffs allege that this building blocks their view of
the lake from their home. In the course of construction, defendant trespassed onto plaintiffs’
adjacent lot.
Plaintiffs first argue that the court erred in denying them summary disposition on their
public nuisance claims. We review the grant or denial of a motion for summary disposition de
novo. Rice v Auto Club Ins Co, 252 Mich App 25, 30; 651 NW2d 188 (2002). For the reasons
stated below, we affirm the trial court’s denial of plaintiffs’ motion for summary disposition, but
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we reverse and remand for further consideration of the lower court’s grant of summary
disposition in favor of defendant.
Michigan law permits private citizens to bring an action for abatement of public nuisance
provided they can show that they suffer damages that are different from those suffered by the
general public. Towne v Harr, 185 Mich App 230, 232; 460 NW2d 596 (1990). Defendant’s
building was in violation of local zoning ordinances for front and rear setbacks and therefore was
a nuisance per se under MCL 125.294, which provides as follows: “A use of land, or a . . .
building, or structure . . . erected . . . in violation of a local zoning ordinance or regulation
adopted pursuant to this act is a nuisance per se.”
Defendant argues that the pole building was not in violation of any zoning ordinance
because the township zoning administrator filled out the land use permit and the building was
sited according to the stakes placed by the administrator. Furthermore, defendant claims that
although the building is not set back forty feet from the road, the administrator applied an
exception to his lot. However, the zoning board of appeals (ZBA) found defendant’s application
“was improperly prepared, signed, submitted, and approved.” A permit issued in violation of
local ordinances is void. See Building Comm of Detroit v Kunin, 181 Mich 604, 612; 148 NW
207 (1914).
In addition, the ZBA made specific findings that the building was in violation of the
zoning ordinance for accessory buildings and found that the building’s 4-½ foot setback violated
the township’s forty-foot rear lot line setback requirement. Although the trial court reversed the
decision of the ZBA, it did so solely on procedural grounds and not because it found that
defendant’s building complied with the zoning ordinance. Therefore, pursuant to MCL 125.294,
defendant’s building was a nuisance per se which “[t]he court shall order . . . abated.”
However, because the issue of whether plaintiffs have sustained special damages was not
addressed by the circuit court, the private nuisance claims are remanded for further consideration
on the issue of plaintiffs’ standing. Specifically, the trial court needs to address the issue of
whether the obstruction of plaintiffs’ scenic view of Lake Huron is a special damage that would
permit plaintiffs to proceed on their public nuisance claim.
Plaintiffs next argue that the trial court erred in deciding that they had to exhaust their
administrative remedies by appealing to the ZBA before proceeding in circuit court. However,
by agreeing to bring its nuisance abatement claim before the ZBA, plaintiffs waived appellate
review of this issue. “A party is not entitled to relief based on an issue that the party’s attorney
concluded was proper at trial.” Hilgendorf v St John Hosp, 245 Mich App 670, 696; 630 NW2d
356 (2001).
Plaintiffs also appeal the trial court’s application of laches to their public nuisance claims.
This Court reviews a trial court’s application of laches for clear error. Gallagher v Keefe, 232
Mich App 363, 369; 591 NW2d 297 (1998). The trial court denied plaintiffs’ motion for
summary disposition on the ground that plaintiffs were not timely in bringing their claim before
the ZBA. We disagree. For laches to apply, defendant must prove that plaintiffs unreasonably
delayed in enforcing their rights and that defendant was prejudiced by plaintiffs’ lack of due
diligence. Id. at 369-370. We do not believe that the record establishes that plaintiffs
unreasonably delayed to the detriment of defendant. In this case, defendant was aware within
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days after beginning construction that there were potential violations of the zoning ordinance and
that plaintiffs were considering an action in circuit court. Defendant proceeded with construction
at his own risk, and any hardship was self-inflicted. Moreover, it was not within the power of
the ZBA to sustain defendant’s permit in violation of the zoning ordinance. DeGaynor v Bd of
Trustees, Dickenson Co Mem Hosp, 363 Mich 428, 437; 109 NW2d 777 (1961).
We also agree with plaintiffs that the trial court erred in failing to award treble damages
for defendant’s intentional trespass onto their property. MCL 600.2919(1) provides as follows:
“Any person who . . . cuts down . . . or injures any trees on another’s lands or . . . digs up or
carries away stone, . . . gravel, clay, sand, turf, or mould . . . is liable for 3 times the amount of
actual damages.”
The court granted plaintiffs partial summary disposition on this trespass claim. Plaintiffs
submitted a bill of costs that included the value of fill dirt removed by defendant, the cost of a
survey of the boundary line between plaintiffs’ and defendant’s lots, cost of the damage to
plaintiffs’ trees, and the cost of a fence to deter further trespass. It is not clear from the record,
but it appears that the award of $733.50 included all of plaintiffs’ costs except the cost of the
fence and half the cost of the survey and recording fee.
In a trespass case, “there is no fixed, inflexible rule for determining, with mathematical
certainty, what sum shall compensate for the invasion of the interests of the owner. Whatever
approach is most appropriate to compensate him for his loss in the particular case should be
adopted.” Schankin v Buskirk, 354 Mich 490, 494: 93 NW2d 293 (1958). Thus, the court’s
decision to compensate plaintiffs for $733.50 of their costs was reasonable and should not be
disturbed on review. Kratze v Order of Oddfellows, 190 Mich App 38, 45; 475 NW2d 405
(1991), rev’d on other grounds 442 Mich 136 (1993).
However, because defendant’s trespass was admittedly intentional,1 plaintiffs are entitled
to treble damages, or $2200.50, in accordance with Governale v Owosso, 59 Mich App 756, 760
761; 229 NW2d 918 (1975), which holds that in order to limit an award to single damages, a
“trial judge had to find that the trespass was casual and involuntary.” Absent this finding, we
reverse for entry of judgment for triple the amount awarded to plaintiffs for defendant’s willful
trespass.
Finally, plaintiffs argue that the trial court erred in assessing sanctions when granting
their motion for voluntary dismissal of all claims. “This court will not set aside the grant or
denial of a voluntary dismissal unless the circuit court’s action was without justification.”
1
In a letter dated July 30, 1999, defendant indicated that “during the construction, a grade level
differential was observed, and the most obvious solution was to create a gentle slope which
would be most esthetically pleasing. In order to carry the slope to its intersection with the
current grade, fill material was taken on” plaintiffs’ adjacent lot. After plaintiffs protested this
unauthorized re-grading of their property, defendant again entered their property and removed
the fill defendant had placed, as well as fill plaintiffs had previously placed on the lot. In both
cases, by defendant’s own admission, he entered plaintiffs’ property intentionally.
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McKelvie v Mt Clemens, 193 Mich App 81, 86; 483 NW2d 442 (1992). An award of attorney
fees and costs is reviewed for abuse of discretion. Auto Club Ins Ass’n v State Farm Ins Cos,
221 Mich App 154, 167; 561 NW2d 445 (1997).
On November 4, 2002, plaintiffs moved for voluntary dismissal of all remaining claims,
with each party to bear its own fees and costs. Defendant responded with a request that plaintiffs
be ordered to pay some portion of defendant’s costs. The court granted plaintiffs’ motion for
voluntary dismissal “upon the condition that Plaintiffs pay unto Defendant any taxable costs and
a reasonable attorney fee, which Plaintiffs may consent to in the amount of $2,000.00 or demand
a bill of costs.”
Under MCR 2.504(A)(2), an action may be dismissed “by order of the court, on terms
and conditions the court deems proper.” However, “[t]he final choice whether to accept the
conditions imposed by the trial court lies with the plaintiff.” Mleczko v Stan’s Trucking, 193
Mich App 154, 156; 484 NW2d 5 (1992). Thus, “a party seeking a voluntary dismissal must be
given a choice to either proceed to trial or accept a dismissal on the terms and conditions
established by the trial court.” McKelvie, supra, 193 Mich App 84. Here, the court granted the
dismissal and ruled that plaintiffs must pay defendant $2,000 in fees and costs. The court further
increased the fee by $1,500 in its order dated March 10, 2003, which cited no authority or factual
basis for the increase. This was all done without first determining whether this was an
acceptable condition. The court’s orders as to fees and costs are vacated and the matter is
remanded to give plaintiffs an opportunity to decide if the court’s conditions are acceptable.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Jane E. Markey
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