Background
The McCoy and Schneider families share a private plat—Charlen Subdivision in Delaware Township, Sanilac County—with their neighbor Jeff Walby. In 2020, the McCoys and Schneiders installed water lines along Charlen Drive, a private gravel road within the subdivision. Their contractor (Schweitzer) accidentally struck and damaged Walby’s underground utility lines during excavation. Walby refused Schweitzer’s on-the-spot offer to immediately repair the damaged lines while the trench was still open, later incurring the additional expense of re-excavation to have a different contractor do the repair.
Walby also claimed that Schweitzer had failed to restore Charlen Drive to its pre-excavation condition. He counterclaimed against the McCoys and Schneiders for negligence, seeking to hold them responsible for their contractor’s work. The parties also litigated related injunctive and property-rights issues. After a bench trial in August 2023, the trial court found in favor of the McCoys and Schneiders on Walby’s counterclaims, finding that the road was properly restored, that photographic evidence did not support Walby’s characterization of pre-excavation conditions, and that Walby had failed to mitigate his damages by refusing Schweitzer’s repair offer.
The Court’s Holding
The Court of Appeals affirmed. The court reviewed the trial court’s factual findings for clear error, affording deference to the trial court’s credibility determinations after a bench trial. The court agreed that Walby’s own testimony undercut his damage claims: he admitted that gravel roads require maintenance every three to four years, that the last maintenance on Charlen Drive had been in 2016 (four years before the excavation), and that he had done nothing to maintain the road in the intervening period. Given this backdrop, the trial court was entitled to find that the road’s condition in 2020 was attributable to deferred maintenance rather than to Schweitzer’s excavation work.
On mitigation, the court affirmed the finding that Walby failed to mitigate by refusing Schweitzer’s offer to repair the damaged utility lines immediately, while the trench was open. The offer was made by a licensed contractor who was well-regarded in the community. Walby’s refusal caused him to incur the unnecessary expense of re-excavation when he eventually had the repairs done. Under the duty to mitigate, a plaintiff cannot recover for losses that reasonable steps would have avoided, and the trial court’s finding that Walby unreasonably refused an adequate repair offer was supported by the evidence.
Key Takeaways
- In a bench trial, appellate courts afford deference to the trial court’s credibility and factual findings. A defendant’s own testimony that contradicts or undermines their damages theory is powerful evidence against them, and trial courts are entitled to credit testimony that the defendant’s own admissions corroborate.
- A party who refuses a reasonable, timely offer to repair damaged property—particularly when the repair could be made at minimal cost while a trench is already open—fails to satisfy the duty to mitigate and cannot recover the additional expenses created by that refusal.
- In private subdivision road disputes, the condition of a gravel road that has not been maintained for several years prior to excavation may itself explain damage that a counterclaiming owner attributes to a neighbor’s contractor.
Why It Matters
This decision reinforces Michigan’s mitigation doctrine in property-damage disputes: a damaged party who turns down a reasonable repair offer and then seeks to recover the inflated cost of later repairs will face a credibility problem before the fact-finder. For Michigan property and construction attorneys, the case is a reminder to document all repair offers made during or immediately after excavation or construction work, and to advise clients who receive such offers that refusal creates litigation risk. The trial court’s conduct of a site visit—which allowed the court to directly assess road conditions—is a reminder that Michigan trial courts retain the ability to gather firsthand evidence in property disputes.