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Zanke-Jodway v. Capital Consultants

March 12, 2010

ALAINA M. ZANKE-JODWAY AND TIMOTHY M. JODWAY, PLAINTIFFS,
v.
CAPITAL CONSULTANTS, INC., A MICHIGAN CORP., LAWRENCE FOX, AN INDIVIDUAL, JAMES E. HIRSCHENBERGER, AN INDIVIDUAL, BEN SACKRIDER, AN INDIVIDUAL, PHILLIP VAN DERMUS , AN INDIVIDUAL, AND BEN SACKRIDER AND PHILLIP VAN DERMUS D/B/A TRI-COUNTY EXCAVATING, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul L. Maloney Chief United States District Judge

OPINION and ORDER

" Zanke 4 "

Granting in Part & Denying in Part TCE's Motion to Dismiss: Dismissing 4 Claims under FED. R. CIV. P. 12(b)(6) for Failure to State a Claim Against TCE

Count 14 - Negligence

Count 10 - Nuisance Per Se (MICH. COMP. LAWS § 125.3407)

Count 11 - Trespass (MICH. COMP. LAWS § 600.2919)

Count 25 - Intentional Infliction of Emotional Distress

Denying FED. R. CIV. P. 12(b)(6) Motion to Dismiss the Other 3 Claims Against TCE:

| HONORABLE PAUL L. MALONEY

Count 7 - NREPA Part 31, Clean Water Act

Count 8 - NREPA Part 91, Soil & Sedimentation Act Count 9 - NREPA Part 301, Inland Lakes and Streams Act

Denying the Cross-Motions for Summary Judgment as Moot on the Four Dismissed Claims:

Count 14 - Negligence

Count 10 - Nuisance Per Se (MICH. COMP. LAWS § 125.3407)

Count 11 - Trespass (MICH. COMP. LAWS § 600.2919)

Count 25 - Intentional Infliction of Emotional Distress

Denying the Cross-Motions for Summary Judgment without Prejudice as Premature on 3 Claims:

Count 7 - NREPA Part 31, Clean Water Act

Count 8 - NREPA Part 91, Soil & Sedimentation Act Count 9 - NREPA Part 301, Inland Lakes and Streams Act

This pro se action implicates Michigan's Natural Resource and Environmental Protection Act ("NREPA"), which is Chapter 324 of the Michigan Compiled Laws. Counts seven, eight and nine may all implicate NREPA Article I - General Provisions (especially Part 3 - Definitions and Part 17 - Michigan Environmental Protection Act ("MEPA")). Count seven implicates NREPA Part 31. Count eight implicates NREPA Article II Chapter 2 - Nonpoint Source Pollution Control (especially Part 91 -- Soil Erosion and Sedimentation Control). Count nine implicates NREPA Article III, Chapter 1, Part 301, especially§§ 30101, 30102 & 30106. The plaintiffs also asserted many tort claims under Michigan's statutory and common law.

Plaintiffs assert seven claims against the moving defendants, Ben Sackrider, Philip Van Dermus, and both men d/b/a Tri-County Excavating, Inc. (collectively "TCE"):

Count 7 NREPA Part 31, Clean Water Act Count 8 NREPA Part 91, Soil & Sedimentation Act Count 9 NREPA Part 301, Inland Lakes and Streams Act Count 10 Nuisance Per Se in violation of MICH. COMP. LAWS § 125.3407 Count 11 Trespass in violation of MICH. COMP. LAWS § 600.2919 Count 14 Negligence Count 25 Intentional Infliction of Emotional Distress ("IIED")

Amended Complaint filed December 6, 2008 (Doc 45) ("Am Comp"); see also TCE's Answer to Amended Complaint filed December 19, 2008 (Doc 47) ("TCE Ans"). For reasons explained below, only three of the seven claims against TCE will survive today's decision; the claims which are dismissed today are listed in "strikeout" font.

FACTUAL BACKGROUND

The property at issue in this action is a home and two lakefront lots at 324 Bay Street, in the Original Plat of Spring Arbor, located in Boyne City, Charlevoix County, Michigan. As of March 2005, the property was owned by non-parties Michael and Elizabeth Pilobosian; in June 2005, they sold it to defendants Michael and Ann Gabos for $549,000. See Am Comp ¶¶ 40 & 49. On July 20, 2005, plaintiffs Alaina M. Zanke-Jodway and Timothy M. Jodway ("together "Jodway") made a $649,000 purchase offer to Gabos; the sale closed on August 3, 2005. Am Comp ¶¶ 1-3, 26, and 50.

Defendant Fifth Third Bank - Michigan, LLC provided financing for the June 2005 Gabos purchase and the Jodway purchase less than two months later. For both transactions, Fifth Third commissioned and relied on appraisals done by defendant Deborah Spence, a licensed Michigan residential real-estate appraiser, through her company A.C.E. Am Comp ¶¶ 27, 29-30, and 52-53.

The August 3, 2005 Warranty Deed ("the deed") states that the property includes three lots. Id. ¶3. Block 4 - Lot 14 is a corner lot which contains their house; the front of the house faces Bay Street, and the side of the house faces Addis Street. Id. ¶ 4. Block 1 - Lots 1 and 2 have a steep slope and a bluff, with 23 cement steps leading to a more-gently sloped flat area, and then a boulder ("rip rock") seawall which ranges from five to eight feet high in front of their beachfront. Id. ¶¶ 4-5.

Next to Lot 14 (Jodway's house) is an unimproved small triangular lot owned by defendant City of Boyne City ("Boyne City"), a municipal corporation. Am Comp ¶¶ 9-10. During the relevant time period, Boyne City employed these defendants: Mayor/Commissioner Stackus; Commissioners Grunch, Adkison, and Douglas; Public Works Director Jason; City Manager Cain; and Water Department Director Meads. Am Comp ¶¶ 11-19.

Next-door and down-slope from the Jodway property is 320 Bay Street (owned by defendants James J. Luyckx and Carolyn S. Luyckx, together "Luyckx"), which experienced stair washout from water run-off directed down their driveway. Id. ¶¶ 35 and 45. Next-door to and down-slope from that is 318 Bay Street (owned by defendants Clarke, Betty Jane, and Lynn Haire), which had a private drain from Bay Street through their property into Lake Charlevoix. Id. ¶¶ 37 and 46-47.

Although Jodway did not own the property until August 2005, the relevant events began about five months earlier, when defendant City of Boyne City ("the City") searched for a contractor to provide engineering design services and supervise the reconstruction of Bay Street. Am Comp ¶ 40. , prepared Capital's proposal. Am Comp ¶¶ 19-21. On March 2, 2005, defendant Capital Consultants, Inc., submitted a proposal to The City which was prepared by defendants James M. Fox and James E. Hirschenberger, Capital employees who were licensed by the State of Michigan as professional engineers. Capital's Bay Street proposal read, in pertinent part:

The reconstruction of Bay Street from John Street to Addis Street, a length of approximately 600 feet. The improvements will include the reconstruction of the existing seal coat roadway with new HMA pavement, drainage and culvert improvements, [and] sanitary sewer and water main replacement. The sanitary sewer will be replaced on John Street from Michigan Avenue to Bay Street.

The existing roadway is approximately 16 feet wide and the new roadway will likely be replaced at the same width and location. Although the City has 66 feet of right of way, in this area, some of it is not usable due to the location of the bluff to the lake, and a portion of the existing road may not be in the right of way. Existing drains to the lake will be utilized where possible. It is not anticipated that new storm outlets to the lake will be included as part of the project.

Defs' MSJ (Doc. No. 58), Ex A at unnumbered page 3 (paragraph break added, emphasis added).

On March 28, 2005, Boyne City entered into a contract with Capital for engineering services for the City's fiscal year 2006 construction projects, see TCE's MTD, Ex 1 ("Engineering Contract"). The contract hired Capital to perform Design Phase Services, Bidding Phase Services, and Construction Phase Services.

Sometime shortly thereafter, Boyne City executed a contract hiring TCE to perform construction work; Capital was also a party to the contract. See TCE's MTD, Ex 2 ("Construction Contract"). The Boyne City-TCE-Capital contract was subject to the standard general conditions of construction contracts prepared by the Engineer's Joint Contract Documents Committee ("EJCDC") No. 1910-8 (1996 edition), see TCE's MTD at 2. Construction contractor TCE emphasizes that the contract called for the Owner (Boyne City) to furnish lands and the site, as well as engineering surveys to establish "reference points" for construction, see TCE's MTD at 2 (citing Ex 2, Art. 4.01 at GC-11 and Art. 4.05 at GC-13). The construction contract contained three major sections: Division 1's General Requirements, Division 2's Site Work (covering excavation, backfilling, aggregate courses, curbs and gutters, sidewalks, driveways, water mains, catch basins, storm sewers, and restoration), and Division 3's Concrete. See TCE's MTD Ex 2.

Boyne City and Capital Consultants (the engineers) prepared a Bid Agreement, as well, which all bidding contractors, including TCE, were required to follow. Boyne and Capital's Bid Agreement referred to "Contract Documents", which included the Construction Contract and its accompanying specifications and drawings, such as specifications for the size and quantity of materials and the size of all pipes. See TCE's MTD, Ex 3 (Bid Agreement) at A-2 to A-4 and A-6. Construction contractor TCE emphasizes that all the "Division Construction Contract work" it performed was based on the technical specifications, drawings, surveys and environmental-permit applications provided by Capital under the Engineering Contract.. See TCE's MTD at 3 (citing Ex 1 at 12-13 ¶¶ F, G and J).

According to Jodway, the "existing drains" referred to in Capital's engineering Proposal to Boyne City were (1) a drainage pipe that ran from a Bay Street catch basin, through the Haires' lakefront property, whose property is "two doors down" from Jodway, and (2) a private catch basin and drain installed by the prior owner of the Jodway property to prevent water run-off from eroding the soil and ...


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