Trespass; Adams v Cleveland-Cliffs Iron Co; Causing excess waters to flow onto another person’s property as a trespass; Wiggins v City of Burton; Requirement that the trespass was intentional; Cloverleaf Car Co v Phillips Petroleum Co; Private nuisance; Adkins v Thomas Solvent Co; Distinguishing nuisance from negligence; Travers Lakes Cmty Maint Ass’n v Douglas Cnty; Principle that noneconomic damages are not recoverable in a negligence claim; Leave to amend; MCR 2.118(A)(2); Futility; Weymers v Khera; Undue delay; Lane v KinderCare Learning Ctrs, Inc; Bill of costs; MCR 2.625(A)(1) & (F)(2); Remediation

In an issue of first impression, the court held that “only the failure to present a bill of costs to the clerk within the time prescribed constitutes a waiver of the right to costs.” Thus, the trial court abused its discretion by ruling that plaintiffs waived their right to costs as the prevailing party. While the trial court did not err by dismissing their negligence and nuisance claims and finding that, with only their negligence claim surviving, they were barred from recovering noneconomic damages, it did err by denying them leave to amend. Finally, the court held that the trial court did not err by finding defendant remediated the situation. Plaintiffs claimed his construction of a new road and placement of a dirt pile caused water to accumulate on their property, killing many trees and damaging their basement. The trial court granted defendant’s motion for partial summary disposition and dismissed plaintiffs’ claims of trespass and nuisance. Because only the negligence claim remained, it also dismissed their requests for noneconomic damages. The jury returned a verdict for plaintiffs on the negligence claim, awarding $50,000 in damages. The court rejected plaintiffs’ argument that the trial court erred by finding they failed to sufficiently plead trespass and nuisance claims, and thus, also erred in dismissing their claims for noneconomic damages. It noted their allegations failed to show how the intrusion of water was intentional, and there was nothing in their nuisance claim to distinguish it from their negligence claim. But it agreed with them that the trial court abused its discretion by denying their motion to amend their complaint to add factual allegations to support those claims after they were dismissed. The court found that all four of the trial court’s reasons for denying the motion to amend were erroneous. It also agreed with plaintiffs that the trial court abused its discretion by ruling that they waived their right to costs as the prevailing party, noting that although they “failed to comply with the requirement of immediately serving the bill of costs on the opposing party, that failure does not constitute a waiver under the plain language of the court rule . . . .” But the court rejected their claim that the trial court erred by finding defendant remediated the water situation on their property, noting the water now vacates the area within a day or so after serious rains. Affirmed in part, reversed in part, and remanded.