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### STATE OF MICHIGAN

COURT OF APPEALS

WORTH TOWNSHIP, a Michigan municipal corporation,

Plaintiff-Appellee, UNPUBLISHED June 22, 2017

v No. 332825
Sanilac Circuit Court SLAVKO DIMOSKI, ZORICA DIMOSKI, VOJNO DIMOVSKI, and GROZDANA DIMOVSKI, LC No. 15-036290-CC

Defendant-Appellants,
and

LAND SERVICES, INC, a Michigan corporation,

Defendant.

Before: O’B RIEN , P.J., and H OEKSTRA and B OONSTRA , JJ.

P ER C URIAM

.

In this condemnation action, defendants 1 appeal by right the trial court’s order granting summary disposition in favor of plaintiff under MCR 2.116(C)(9) and (10), ordering the taking of defendants’ property by condemnation for a public purpose, a nd granting defendants a judgment of just compensation in the amount of $256,000. The t rial court denied defendants’ motion for relief from judgment or for reconsideration of its o rder granting summary disposition.
We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

As a result of an earlier action brought by the Michigan Depar tment of Environmental Quality, plaintiff was ordered to take certain remedial actions to cease its discharge of raw

1 Defendant Land Services, Inc. w as named as a defendant in the condemnation acti on as a lessee of the Dimovski defendants’ prope rty. Land Services, Inc. was not named on the Dimovskis’ claim of appeal and has not appealed the trial cou rt’s orders.-2- sewage into the waters of Michigan. As a result of that order, plaintiff sought to acquire three parcels of property ow ned by defendants (col lectively “the prop erty”) to install a sewer lagoon as part of a plan to install a wastewater collection and treatment system. To that end, plaintiff offered to purchase the prope rty from defendants for $256,000. Plaintiff’s offer was based on an appraisal from Certified General Appraiser Dan J. Brown dated M ay 5, 2015. Defendants did not accept that offer, and did not sell the property to plainti ff voluntarily.

In August 2015, plaintiff filed suit, requesting that the cour t order the taking of the property by eminent domain and either enter a judgment of just compensation in the amount of $256,000 (adjusted for delinquent taxes and costs of remediatio n for environmental contamination, if any) or set a date for a pretrial conference and trial to determine the amount of just compensation owed to defendants. Defendants answered the complaint, denying that plaintiff’s stated figure of $256,000 represented just compensa tion for the taking of the property and requesting that the trial cou rt “set a schedule so the part ies may arrive at a reasonable price for Plaintiff to compensate Defendants for Defendants’ real pro perty.” 2 In early December 2015, defendants had an appraisal of the property performed by Certif ied General Appraiser Dale R. Hager, who valued the property at $234,000. Plaintiff and defe ndants exchanged appraisal reports pursuant to MCL 213.55(3)(b). 3 Plaintiff made an offer of judgment to defendants in December 2015, offering to stipulate to a judgment for condemna tion in the amount of $256,000.

In January 2016, plaintiff filed a motion for summary disposit ion under MCR 2.116(C)(8), (9), and (10). Plaintiff argued that both par ties had had the property appraised, and that defendants’ a ppraisal was actually lower th an the amount plaintiff had stated it was willing to pay, and thus that there was no genuine issue of material fact regarding the amount of just compensation owed by plaintiff. Plaintiff attac hed both the Hager and Brown appraisals to its motion. Also in January 2016, defendants res ponded with a counter-offer of judgment in the amount of $360,000.

In February 2016, the trial court held a hearing on plaintiff’ s motion for summary disposition. Defendants’ counsel stated at the hearing that hi s firm was “[c]ounsel of record since this morning and we got involved in the case last week.” 4 Defendants argued that no scheduling order had been issued in the case and that no discov ery had been conducted, making a motion for summary disposition premature. Plaintiff’s counsel stated that during negotiations with one of defendants’ prior a ttorneys, plaintiff had “indicat ed that if [defendants] got an appraisal and it came back higher then we would pay a higher pr ice,” but that defendants’ appraisal in fact came back lower. Plaintiff argued that becau se it was willing to pay the higher

2 Defendants did not challenge the necessity of the taking itsel f and later consented to the necessity of the taking of t he property by condemnation.

3 MCL 213.55(3)(b) provides, “The parties shall exchange the age ncy’s updated appraisal report, if any, and the owner’s appraisa l report within 90 days after t he expiration of the period for filing
written claims . . . .”

4 Plaintiff’s counsel represente d that defendants had retained f our attorneys over the course of the proceedings.-3- appraised amount, there was no i ssue of material fact regarding the amount of just compensation. The trial court adjourned the hea ring for two weeks to provide defendants with the opportunity to supplement their response to plaintiff’s motion, and stated tha t it would grant the motion “absent some other evidence.” The trial court issued a scheduling orde r that day, establishing May 23, 2016 as the deadline for the completion of discovery.

After the hearing, defendants deposed Worth Township Superviso r Philip Essenmacher. They also secured an affidavit from Hager, their appraiser, whe rein Hager stated that he had undervalued the property by valuing the three parcels as one pa rcel with the highest and best use being agricultural, rather than a s separate parcels with the hi ghest and best use be ing residential.

At a continued motion hearing on February 29, 2017, defendants argued that Hager’s
affidavit demonstrated that both the Hager and Brown appraisals were faulty for not valuing the parcels as three separate parcels, for incorrectly identifying the highest and best use, and for not taking into account the scarcity o f properties that suited plai ntiff’s specific need s for construction of a sewer lagoon. Defendants also argued that Hager, given ti me, would produce new appraisals of the property with a higher valuation. According to defendants, this created a factual dispute that rendered s ummary disposition inappropriate

.

The trial court granted plaintiff’s motion, stating that defen dants had failed, even after being granted additional time, to raise a genuine issue of mate rial fact that the property was worth more than $256,000. Defendants moved for relief from jud gment or reconsideration, attaching to their motion new a ppraisals from Hager, dated Marc h 29, 2016, that separately valued the three parcels at a total value of $288,000. The tri al court denied defendants’ motion. This appeal followed.

II. STANDARD OF REVIEW

We review de novo trial court’s decision on a motion for summa ry disposition. Moser v

Detroit , 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary disposit ion is proper under MCR 2.116(C)(10) 5 if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” “A genuine iss ue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp

, 469 Mich 177, 183; 665 NW2d 468 (2003). We consider the affidavits, pleadings, depositions , admissions, and other documentary evidence in the light most favorable to the nonmovi ng party. Liparoto Constr, Inc v Gen Shale Brick, Inc , 284 Mich App 25, 29; 772 NW2d 801 (2009). All reasonable inf erences

5 Although the trial court’s order granting summary disposition to plaintiff is titled “Order Granting Summary Disposition Under MCR 2.116(C)(9) and (10) For Taking of Property by Condemnation and Entry of Judgment For Just Compensation,” the order states, and the record makes clear, that the trial court considered material beyond th e pleadings in rendering its
decision. We therefore review t he trial court’s grant of summa ry disposition as being one made pursuant to MCR 2.116(C)(10). See Dehart v Joe Lunghamer Chevrolet, Inc ., 239 Mich App 181, 184; 607 NW2d 417 (1999).-4- are to be drawn in favor of the nonmovant. Dextrom v Wexford County , 287 Mich App 406, 415; 789 NW2d 211 (2010). A genuine issue of material fact exists w hen the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds could differ. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

We review for an abuse of discretion a trial court’s decision on a motion for relief from judgment or reconsideration. Churchman v Rickerson , 240 Mich App 223, 233; 116 NW2d 333 (2000).

III. ANALYSIS

Defendants argue that the trial court erred by granting summar y disposition in favor of plaintiff; specifically, defendants maintain that (1) the grant of summary disposition was premature and (2) a genuine issue of material fact existed rega rding just compensation for the property. We disagree in both respects.

Generally, a motion for summary disposition under MCR 2.116(C) (10) may be raised at any time, subject to the trial court’s discretion to limit the time for such motions by scheduling
order. Kemerko Clawson

, LLC v RXIV Inc , 269 Mich App 347, 350-351; 711 NW2d 801 (2005). Summary disposition may be prema ture if it is granted before di scovery on a disputed issue is completed, Marilyn Froling Revocable Living Trus t v Bloomfield Hills Country Club , 283 Mich App 264, 292; 769 NW2d 234 (2009), unless further discovery doe s not present a fair likelihood of uncovering factual support fo r the opposing party’s position

. Liparoto Constr, Inc , 284 Mich

at 33-34.

Discovery in the circuit court may be conducted at any time wi thout approval of the court; unlike the district court , the circuit court is not requ ired to order that disc overy be initiated, nor is a stipulation to conduct discovery required. See MCR 2. 301(A)-(B), MCR 2.302(A)(2). At the initial motion hearing, d efendants’ counsel stated his a wareness that a scheduling order was not required to initiate discovery in a circuit court case. Nonetheless, defendants argue that the trial court prevented them from conducting necessary discov ery on the issue of just compensation by granting defendant s’ motion for summary disposi tion on March 21, 2016, more than 7 months after the filing of plaintiff’s complaint for con demnation.

During the time between the filing of plaintiff’s complaint an d the trial court’s grant of summary disposition, defendants had the property appraised by t heir own appraiser, and submitted their own counter-offer of judgment. It appears that defendants were dissatisfied with their own appraisal, and with the counsel they had retained to represent them in this matter, and that they retained new counsel a t least once, if not several ti mes. However, defendants do not explain why the period of seven months did not provide them ade quate time to conduct sufficient discovery in this case where the issue was limited to the valua tion of a subject property. Although discovery rules are to be liberally construed, the tim e allowed for discovery is not endless; disclosure of facts re lated to the underlying issues m ust be balanced against the necessity of disposing of the litigation in a timely manner. S ee Klabunde v Stanley , 384 Mich 276, 282; 181 NW2d 918 (1970).

If defendants were hampered in their ability to conduct discov ery by problems with their retained counsel, their reme dy lies elsewhere. See, e.g., Basic Food Industries, Inc v Grant , 107-5- Mich App 685, 690-691; 310 NW2d 26 (1981) (holding that attorne y breached his duty of care by, inter alia, failing to make any pretrial discovery). Addit ionally, the trial court did adjourn the motion hearing to provide defendants with two additional weeks to supplement their response to plaintiff’s motion; during that t ime, defendants conducted a de position and consulted their appraiser.

Defendants’ principal objecti on does not, however, appear to b e that they had insufficient time to conduct appropriate disc overy. Rather, the root of def endants’ objection seems to be that the trial court erred by not gr anting them enough time to prepa re a new appraisal. We disagree. By the time of the initial motion hearing, nearly six months ha d elapsed since the filing of the action. Defendants’ first apprai sal had been completed more th an two months earlier. While defendants may have been dissatisfied with their own appraiser’ s initial valuation, and may have therefore rethought their valuati on theory, nothing prevented d efendants from obtaining a second appraisal (and from completing any necessary discovery attendan t to it) before the initial motion hearing, or certainly, given that the trial court continued the hearing to a later da te for the express purpose of allowing defendants to produce additional evidence, before the second motion hearing. Yet defendants failed to do so, and they therefore ca nnot now be heard to complain of insufficient time to conduct appropriate discovery.

Our conclusion is not altered by the fact that after the initi al motion hearing, the trial court entered a scheduling order providing a hard date for the close of all discovery; the fact that
the trial court set such a date (so that, if it were to deny de fendants’ motion, relevant time periods for discovery would be established to ensure that trial would n ot be unduly delayed, see MCR 2.401(B)-(C)) did not prevent i t from considering plaintiff ’s motion at an earlier date, MCR 2.116(D)(4), and defendants were fully aware of the trial c ourt’s intent to grant plaintiff’s
motion in two weeks absent the introduction of additional evide nce. Finally, at the time of the initial motion hearing, the trial court was presented with two completed appraisals and had no evidentiary basis to believe tha t allowing additional time for a third appraisal to be conducted would reasonably lead to suppor t for defendants’ position. Liparoto Constr, Inc , 284 Mich at 33-

34.

Defendants additionally argue t hat the trial court erred by gr anting summary disposition to plaintiff because Hager’s affidavit created a genuine issue of material fact as to the valuation of the property, in that it stated that (1) the highest and bes t use of the three parcels individually was residential and (2) the valu ation of the parcels as one par cel rather than three separate parcels was erroneous and led t o a lower value. We disagree.

In a condemnation action where a property owner does not conte st the necessity of condemnation, the issue is generally limited to the amount of j ust compensation to be provided.

See Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 369; 663 NW2d 436 (2003).
Plaintiff carried its initial burden of supporting its position that by providing the trial court with both the Brown and Hager appraisals and stating that it would p ay the higher appraised amount. MCR 2.116(G)(3)(b); MCR 2.116(G)(4); Coblentz v Novi , 475 Mich 558, 569; 719 NW2d 73 (2006). It was thus incumbent on defendants to show by evident iary materials that a genuine
issue of material fact e xisted. MCR 2.116(G)(4), Coblentz , 475 Mich at 569. Mere speculation and conjecture are insufficient. Skinner v Square D Co , 445 Mich 153, 172-173; 516 NW2d 475 (1994). Here, Hager’s affidavit essentially states that he err ed in performing his own appraisal;-6- contrary to defendants’ argument, and although it does express Hager’s opinion that any appraisal valuing the property as one parcel for agricultural u se would undervalue the property relative to individual valuations of the three parcels for resi dential use, it does not specifically challenge Brown’s appraisal as erroneous. Nor does Hager’s aff idavit contain a valuation of the property, as Hager had not at that time performed a new apprais al; rather the affidavit merely speculates that such an appraisa l would result in a higher valu e.

Defendants never presented the trial court with any evidence t hat Hager would testify to deficiencies in the Brown appraisal, although defendants’ couns el submitted his own affidavit to the trial court, following the initial motion hearing, indicati ng his belief that both Hager and Brown would testify that Brown’s appraisal was inaccurate. Bot h counsel’s affidavit and Hager’s affidavit merely posit the possibility that a claim mig ht be supported by e vidence at trial; such speculation is insufficient to survive a motion for summar y disposition. See Maiden v
Rozwood , 461 Mich 109, 121; 597 NW2d 817 (1999). Further, Essenmacher ’s deposition testimony regarding the specific requirements for the placement of a sewer lagoon and his testimony that none of the other owners of suitable properties were willing to sell do not create an issue of material fact; in the first instance, his testimony concerning statements made by other property owners is inadmissible hearsay, see MRE 801(c). Addit ionally, Essenmacher affirmatively stated that he was not an appraiser or expert in property valuation. And the mere fact that the property at issue has attributes specifically des irable to plaintiff (who was faced with a time limit for complying with the consent order from the prev ious suit) is not evidence that plaintiff’s stated amount of just compensation was inaccurate. Obviously, the characteristics of the property at issue are what prompted plaintiff to attempt fi rst to purchase the property, and then to take it by condemnation. Defendants argue that the tri al court should have considered the scarcity of other properties that possessed these characteristi cs, but do not explain how the appraisals failed to account for or undervalued favorable chara cteristics of the property. And to the extent that defendants argue that they essentially had plai ntiff “over a barrel” because of the lack of other suitable properties and the time limit establishe d by the previous consent order, and
thus should have been able to obt ain a higher price for the pro perty than they may have from other buyers, “a guiding principle when awarding just compensat ion in a condemnation suit is to neither enrich the individual at the expense of the public nor the public at the expense of the individual but to leave him in as good a position as if his lan ds had not been taken.” Mich Dep’t of Transp v Tomkins , 481 Mich 184, 189; 749 NW2d 716 (2008).

The trial court did not err by granting summary disposition in favor of plaintiff under MCR 2.116(C)(10). Further, the trial court did not abuse its d iscretion by declining to grant
reconsideration or relief from judgment. Although defendants b elatedly supported the latter motion with Hager’s new appraisal valuing the property as indiv idual parcels, this evidence was only “newly discovered” in the sense that defendants had failed to obtain such an appraisal during the seven months the case was pending, or for nearly fou r months after Hager’s first appraisal was completed. There was no reason why defendants, i n the exercise of due diligence, could not have provided this appra isal earlier. There was thus no evidence of a “palpable error by which the court and the parties have been misled;” the trial court was within its discretion to decline to consider evidence that could have presented when the motion was originally decided. MCR 2.119(F)(3); Yoost v Caspari , 292 Mich App 209, 220; 813 NW2d 783 (2012).-7- Affirmed.

/s/ Colleen A. O’Brien
/s/ Joel P. Hoekstra
/s/ Mark T. Boonstra