LaSalle Bank forced to pay damages for private nuisance after destroying neighbor's back yard
Richard and Suzanne Hainer sued LaSalle Bank after an Oakland County branch under construction changed the grade of its lot and flooded their backyard. After a bench trial, the Hainers were awarded $15,000.00 in damages for the loss of the use and enjoyment of the back yard during a two-year period, but they were not awarded any attorney's fees. The Bank appealed the award and the Hainers appealed the denial of attorney's fees.The Court of Appeals noted that under the American Rule, attorneys fees can be awarded to the prevailing party only when authorized by a specific statute or court rule. While the private nuisance statute authorizes "costs" it does not authorize fees.
At one point in conjunction with an injunction, the Court authorized a $500.00 per day penalty if the bank did not rectify the problem by a date certain. The bank beat the deadline with substantial, but not complete remediation. The Hainers wanted to add the per diem penalty to the bench award and the Bank objected to the award in its entirety. The Court of Appeals deemed the issue moot, given the finding of substantial compliance.