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Court emphasizes rejection of "continuing trespass" theory

The Frolings bought a vacant lot in Bloomfield and build a new home.  Thanks to inadequate storm sewers, irrigation at the local country club, neighbors re-shaping the topography and pre-existing drainage, their basement became the collecting spot for a subdivision's surface drainage.  They sued the City, the neighbors, the Country Club and a handful of others, but ultimately left the trial court owing their neighbors more than a quarter million dollars in sanction fees and costs.  On appeal, the higher court left them without recourse for flooding damage, but did reverse the sanction fee and cost decision.

In essence, the lower court held that the City was not responsible for previously inadequate drainage planning or for approval of a plat that was not consistent with the original design.  More importantly, it held that for the Frolings to sue for trespass damages, they needed to file suit within three years of the wrongful acts by their neighbors--not within three years of the most recent damage suffered.

The Court noted that the appellate decisions respecting the "continuous trespass" theory are contradictory and inconsistent.  Historically, someone suffering a repeated trespass could sue for the recent damages incurred, even if they had foregone relief in the past.  Based on recent anti-consumer, pro-insurer and government decisions by the Engler Majority, however, the Court felt constrained to adopt the theory that if you don't sue within three years of the wrongful trespass, you have given up your rights---even if the current damages are different in nature or degree.  "You snooze, you lose." 

Not a good way to resolve disputes without litigation, to reward forbearance and patience or to treat citizens who attempt to avoid litigating every affront they suffer.  We see little to recommend the outcome in Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club, et al., from a public policy standpoint.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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