Capitol Properties Group, LLC v. 1247 Center Street, LLC

770 N.W.2d 105, 283 Mich. App. 422, 2009 WL 1034268
CourtMichigan Court of Appeals
DecidedApril 16, 2009
DocketDocket 281112
StatusPublished
Cited by51 cases

This text of 770 N.W.2d 105 (Capitol Properties Group, LLC v. 1247 Center Street, LLC) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Capitol Properties Group, LLC v. 1247 Center Street, LLC, 770 N.W.2d 105, 283 Mich. App. 422, 2009 WL 1034268 (Mich. Ct. App. 2009).

Opinions

Servitto, J.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants. We affirm.

Defendant Thomas Donall is the president of defendant 1247 Center Street, LLC, a company that owns X-Cel, a nightclub located in the city of Lansing. Plaintiff owns a building containing residential and commercial units immediately adjacent to X-Cel. According to plaintiff, X-Cel plays music at levels that exceed those allowed by local ordinances and, among other things, constitutes a nuisance and interferes with plaintiffs right to the quiet enjoyment of its property. Plaintiff initiated this action seeking an abatement of the alleged nuisance or to enjoin defendants from operating X-Cel in violation of the applicable city ordinances. Defendant essentially denied the allegations and brought a counterclaim against plaintiff for tortious interference with [425]*425a business expectancy. After an evidentiary hearing, the trial court denied plaintiffs motion to abate the alleged nuisance, taking judicial notice that the area concerned is zoned G-l or “business.” The trial court later granted summary disposition in defendants’ favor, opining that defendants were not in violation of Lansing noise ordinances. The trial court stated that plaintiffs claims of nuisance are based on a violation of such ordinances and that, failing to establish a violation, plaintiffs claims fail as a matter of law. This appeal followed.

Although defendants’ motion for summary disposition was premised on MCR 2.116(C)(8), the court looked beyond the pleadings in granting the motion. We will thus treat the motion as having been alternatively granted under MCR 2.116(C)(10). Sharp v City of Lansing, 238 Mich App 515, 518; 606 NW2d 424 (1999).

A grant of summary disposition based on a failure to state a claim is reviewed de novo on appeal. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The pleadings alone are considered in testing the legal sufficiency of a claim under a MCR 2.116(C)(8) motion. Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). It is well established that for purposes of a motion under MCR 2.116(C)(8), all factual allegations in support of the claim are accepted as true and viewed in the light most favorable to the nonmoving party. Maiden, 461 Mich at 119. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001).

“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 [426]*426Mich 177, 183; 665 NW2d 468 (2003). When reviewing a motion under subrule C(10), this Court considers the pleadings, admissions, affidavits, and other relevant record evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists warranting a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

Plaintiff first contends that the trial court erroneously dismissed its complaint in that it did not accept the factual statements in the complaint as true. Plaintiff specifically asserts that the trial court should have accepted as true that defendants were violating local ordinances as alleged in the complaint. However, whether defendants violated a local ordinance is not a “fact” or even a reasonable inference drawn from the facts; it is a conclusion of law. A statement of plaintiffs conclusions, unsupported by allegations of fact, does not suffice to state a cause of action. See Churella v Pioneer State Mut Ins Co (On Remand), 258 Mich App 260, 272; 671 NW2d 125 (2003). While plaintiff did allege that defendants produced more than 55 decibels of sound, a fact that must be accepted as true, whether defendants violated the noise ordinances is a legal conclusion based on the decibel levels and on interpreting where the local ordinance applies (see later discussion). The legal conclusion is insufficient to state a cause of action. Summary disposition with regard to an ordinance violation claim was thus proper, and any amendment of plaintiffs complaint concerning the violation would be futile.

Plaintiff also directs us to several paragraphs in its complaint, which it asserts, when taken as true, properly plead causes of action for nuisance. For example, plaintiff alleged in its complaint that “defendants’ noise production at decibel levels above those [permitted] by [427]*427law constitute[s] an act, occupation, and structure which [is] a nuisance at all times and under any circumstances.” According to plaintiff the above demonstrates a nuisance per se. Again, however, whether defendants violated an ordinance proscribing certain decibel levels is a legal conclusion. Moreover, a nuisance per se is “an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings,” Ypsilanti Charter Twp v Kircher 281 Mich App 251, 269 n 4; 761 NW2d 761 (2008). Here, plaintiff claimed that the noise was a nuisance solely because of the club’s location (next to residential loft apartments) and surroundings. A club producing excessive noise only at certain hours, or in the middle of the desert would not necessarily be a nuisance and, as such, is not a nuisance at all times and under any circumstances. Summary disposition was thus appropriate with respect to the nuisance per se claims, and any amendment of plaintiffs complaint concerning nuisance per se would be futile.

Plaintiff also asserts that it stated a claim for public nuisance in alleging that “defendants are interfering with the public’s health, safety, peace, comfort, and convenience by producing noise in excess of 55 decibels” and “defendants’ noise pollution is known or should have been known to defendants to be of a continuing nature that produces a permanent or long-lasting, significant effect on the public’s health, safety, peace, comfort, and convenience.”

Public nuisance is defined in Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995), as an “unreasonable interference with a common right enjoyed by the general public.”

The term “unreasonable interference” includes conduct that (1) significantly interferes with the public’s health, [428]*428safety, 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. [Id. (citation omitted).]

We agree that plaintiffs complaint set forth sufficient allegations of fact that, when taken as true, constitute a public nuisance. As previously indicated, plaintiff alleged that defendant’s production of noise at levels in excess of 55 decibels interfered with the public health and that plaintiffs tenants, who resided next to defendants’ club, have suffered significant “physical, emotional and financial harms” as a result of the noise level.

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Cite This Page — Counsel Stack

Bluebook (online)
770 N.W.2d 105, 283 Mich. App. 422, 2009 WL 1034268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capitol-properties-group-llc-v-1247-center-street-llc-michctapp-2009.