WILLIAM Q TINGLEY III V 900 MONROE LLC
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
February 22, 2007
9:10 a.m.
WILLIAM Q. TINGLEY, III, WILLIAM Q.
TINGLEY, and DANIEL R. BRADLEY,
Plaintiffs-Appellants,
and
PROTO-CAM, INC., BEND TOOLING, INC.,
and TENNINE CORPORATION,
No. 243171
Kent Circuit Court
LC No. 02-003723-NZ
ON REMAND
Plaintiffs,
v
900 MONROE L.L.C., ROBERT F. WARDROP II,
WILLIAM H. FISHER III, TODD R.
DICKINSON, WARDROP & WARDROP, P.C.,
DICKINSON WRIGHT, PLLC, FISHER &
DICKINSON, P.C., 940 MONROE L.L.C.,
PIONEER INCORPORATED, CITY OF GRAND
RAPIDS, JOHN H. LOGIE, DYKEMA
EXCAVATORS, INC., and FIFTH THIRD
BANCORP,
Official Reported Version
Defendants-Appellees.
Before: Meter, P.J., and Wilder and Borrello, JJ.
WILDER, J.
Our Supreme Court has vacated this Court's previous judgments in this case and
remanded this matter for reconsideration in light of Nat'l Wildlife Federation v Cleveland Cliffs
Iron Co, 471 Mich 608; 684 NW2d 800 (2004), and plaintiffs' second amended complaint.1 On
1
On November 26, 2002, this Court entered an order consolidating the instant case with Tingley
v 900 Monroe, LLC, Docket No. 244609, plaintiffs' appeal of the trial court's orders granting
(continued…)
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remand, we conclude that plaintiffs' second amended complaint should be dismissed in its
entirety.
This case, which has a long and complex history, arose out of a property dispute over the
use of an abandoned street that runs adjacent to the building that houses corporate plaintiffs
Proto-Cam, Inc.; Bend Tooling, Inc.; and Tennine Corporation.2 In 1999 and 2000, defendants
900 Monroe, L.L.C.; 940 Monroe, L.L.C.; and Pioneer, Inc., were renovating the Berkey & Gay
(B & G) building site, a former factory located adjacent to the corporate plaintiffs' site. In
August 2000, corporate plaintiffs Proto-Cam and Tennine sued 940 Monroe and Pioneer,
alleging trespass and seeking injunctive relief and damages. The trial court awarded plaintiffs
permanent injunctive relief and damages, and this Court affirmed that decision.3
In June 2002, plaintiffs filed a 44-page amended complaint naming as defendants 900
Monroe; 940 Monroe; the city of Grand Rapids (the City); John H. Logie (then the mayor of
Grand Rapids); Dykema Excavators, Inc.; Fifth Third Bancorp (Fifth Third); Dickinson Wright,
PLLC; Robert F. Wardrop, II; William J. Fisher, III; and Todd R. Dickinson. Essentially, the
complaint alleged that defendants conspired to remove hazardous waste from the B & G site and
deposit it at a water filtration plant in violation of the environmental response act (ERA), MCL
324.20101 et seq., and the hazardous waste management act (HWMA), MCL 324.11101 et seq.
In count I, the individual plaintiffs alleged that the developer defendants and Fifth Third, the city,
Logie, and Dykema violated the ERA at the B & G site, and that the developer defendants,
Dickinson Wright, Dykema, and Fisher made false statements to the Department of
Environmental Quality and other agencies. In count II, the individual plaintiffs alleged that the
same defendants violated the ERA at the water filtration plant. In count III, the individual
plaintiffs alleged that the developer defendants and Dykema, Fifth Third, the city, and Logie
violated the HWMA. In count IV, the individual plaintiffs alleged that defendants committed a
fraud on the court. In count V, the individual plaintiffs alleged that various defendants conspired
to remove hazardous waste, conceal their actions, and engage in retaliation against plaintiffs. In
count VI, the individual plaintiffs alleged that the attorney defendants committed an abuse of
process in the prior case. Counts VII and VIII alleged unjust enrichment against various
defendants. Count IX requested exemplary damages.
Various defendants moved for summary disposition. The trial court dismissed all counts
in the amended complaint for different reasons. In particular, the trial court dismissed count III,
alleging violation of the HWMA, count V, alleging conspiracy, and count IX, seeking exemplary
damages, on the grounds that the individual plaintiffs were not the real parties in interest and that
(…continued)
sanctions to certain defendants. Defendants filed applications for leave to appeal in the Supreme
Court regarding this Court's decision in the instant case only, and this remand concerns only the
instant case.
2
Plaintiffs William Q. Tingley, III; William Q. Tingley; and Daniel R. Bradley are officers and
directors of plaintiff corporations.
3
Proto-Cam Inc v 940 Monroe LLC, unpublished opinion per curiam of the Court of Appeals,
issued December 16, 2004 (Docket No. 251387).
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Tingley, III, who is not an attorney, engaged in the unauthorized practice of law by representing
the corporate plaintiffs and Tingley and Bradley.
Subsequently, various defendants moved for sanctions.
motions.
The trial court granted the
The individual plaintiffs appealed the trial court's order dismissing their complaint4 and
the orders granting sanctions.5 This Court consolidated the appeals.6
On June 24, 2004, this Court issued opinions in a related case, Tingley v Kortz, 262 Mich
App 583; 688 NW2d 291 (2004),7 and in the consolidated appeals. In the latter opinion, this
Court affirmed in part and reversed in part the trial court's decision, and remanded for further
proceedings. In pertinent part, this Court held that the trial court erred by dismissing count III of
the complaint, which alleged that defendants violated the HWMA, on the ground that plaintiffs
were not the real parties in interest. This Court held that MCL 324.11151 conferred on an
individual standing to sue under the HWMA, even if that particular individual's interests had not
been harmed.8
On February 22, 2005, this Court issued the following order:
On the Court's own motion, the June 24, 2004 opinion is hereby
VACATED. In Nat'l Wildlife Fed'n v Cleveland Cliffs Iron Co, 471 Mich 608,
628-632; 684 NW2d 800 (2004), the Michigan Supreme Court held that members
of a conservation group, supported by affidavits and expert opinion on causation,
had alleged sufficient injury to establish standing to sue under the Michigan
Environmental Protection Act (MEPA), MCL 324.1701 et seq. In the instant
case, plaintiffs' claims under MCL 324.20135(3)[9] were not supported by
4
The corporate plaintiffs were not parties to the appeal.
5
The claim of appeal was untimely with respect to all sanction orders save that awarding
$1,185.79 to the city and Logie.
6
See n 1.
7
This case concerned an appeal by Tingley, III, of an order entered by the chief judge of the
Kent Circuit Court regarding Tingley's ability to file further litigation. Tingley v Kortz, 262
Mich App 583; 688 NW2d 291 (2004). This case is not relevant to the remand currently before
this Court.
8
This Court found that the trial court should have granted summary disposition of count III with
respect to the attorney defendants because the complaint did not allege that those defendants
violated the HWMA. The trial court found that count III properly alleged a cause of action
against the developer defendants, Fifth Third, Dykema Excavators, the city, and Logie.
9
MCL 324.20135(1) is the standing provision in the ERA. Count III of plaintiffs' amended
complaint was not based on this provision; rather, count III alleged violation of the HWMA, and
claimed standing under MCL 324.11151.
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affidavit or expert opinion, and failed to establish sufficient injury or causation.
Accordingly and pursuant to Cleveland Cliffs, supra, the trial court properly
granted summary disposition in favor of defendants on count three of plaintiffs'
amended complaint, and this Court's conclusion to the contrary in the June 24,
2004 opinion was palpably erroneous. A new opinion is attached.
In the new opinion, this Court acknowledged Nat'l Wildlife, held that plaintiffs failed to establish
standing to sue under MCL 324.11151, and affirmed the trial court's dismissal of count III of
plaintiffs' complaint.10
Plaintiffs moved for reconsideration of this Court's February 22, 2005, opinion and order,
arguing that this Court lacked jurisdiction to vacate the June 22, 2004, decision, and asserted that
because proceedings in the trial court had been reopened by virtue of the June 22, 2004, decision,
this Court should have taken those proceedings into consideration.11 Defendants opposed the
motion for reconsideration.
On May 5, 2005, this Court issued the following order (Judge Wilder concurred in
the result only):
The Court orders that the plaintiffs-appellant's motion for reconsideration
is granted. The Court's opinion issued in these consolidated cases on February 22,
2005, is hereby vacated inasmuch as this Court did not have jurisdiction to issue
that opinion.
The Court furthers [sic] orders that this Court's opinion issued on June 24,
2004, in these consolidated cases is reissued and reinstated as of the date of the
Clerk's certification of this order, and is the opinion of the Court.
10
This opinion was slated to appear in this Court's official reports at 265 Mich App 264 (2005),
but, for reasons that will be explained below, was vacated and did not so appear.
11
On October 22, 2004, the individual plaintiffs filed a second amended complaint naming 900
Monroe, 940 Monroe, Pioneer, Fifth Third, Dykema Excavators, Superior Environmental
Corporation, and the city as defendants, and alleging that these defendants violated the HWMA.
Tingley and Tingley, III, submitted affidavits in which they alleged that they personally observed
defendants moving materials believed to contain hazardous waste from the B & G site adjacent
to the building in which they worked; Tingley, III, averred that he came into direct contact with
hazardous waste materials via dust clouds, etc. Plaintiffs also submitted an affidavit from Robert
Hayes, a professional geologist, who averred that he reviewed documents related to the B & G
site, and who opined that soil contaminated by hazardous waste presented a risk to those persons
exposed to it. Various defendants moved for summary disposition of plaintiffs' claim under the
MHWA, arguing that plaintiffs lacked standing to sue under the standard set out in Nat'l Wildlife.
The trial court denied the motions with respect to Tingley and Tingley, III, but granted it with
respect to Bradley.
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The Court further orders that this Court's opinion issued on June 24, 2004,
in Tingley v Kortz, 262 Mich App 583 (2004), is unaffected by any order that has
been entered in the consolidated cases referenced here. [Tingley v 900 Monroe,
LLC, 266 Mich App 801 (2005).]
In its revised opinion, this Court held, as it had in its initial opinion, that MCL 324.11151
conferred standing on an individual to sue under the HWMA, even if that individual did not
assert an injury to his or her particular interests. Tingley v 900 Monroe, LLC, 266 Mich App
233, 249-251 (2005).
The developer defendants, the city, Logie, and Dykema Excavators filed applications for
leave to appeal to our Supreme Court, arguing that this Court erred by vacating its February 22,
2005, opinion on the basis of an erroneous legal conclusion that it lacked jurisdiction to issue the
opinion; that a plaintiff lacks standing to sue under the HWMA unless he or she satisfies the
traditional requirements of standing, including a particularized injury; and that on the facts of
this case, plaintiffs lacked standing to sue under the HWMA.
On April 7, 2006, our Supreme Court issued the following order:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
vacate the May 5, 2005, Court of Appeals judgment and the June 24, 2004, Court
of Appeals judgment, and we remand this case to the Court of Appeals for
reconsideration in light of National Wildlife Federation v Cleveland Cliffs Iron
Co, 471 Mich 608 (2004), and plaintiffs' second amended complaint. . . . We do
not retain jurisdiction. [Tingley v Wardrop, 474 Mich 1104; 711 NW2d 382
(2006).][12]
Thus, on remand, this Court is charged with reconsidering plaintiffs' argument that they have
standing to sue under the HWMA in light of Nat'l Wildlife and the allegations in plaintiffs'
second amended complaint. The order consolidating the appeals was vacated to allow Docket
No. 243171 to be considered separately on remand.
In Nat'l Wildlife, the plaintiffs National Wildlife Federation and the Upper Peninsula
Wildlife Council, on behalf of their members, filed a petition with the Department of
Environmental Quality (DEQ) to prevent the defendants Cleveland Cliffs Iron Company and
Empire Iron Mining Partnership from expanding mining operations at the Empire Mine. The
DEQ, which had issued a permit authorizing the expanded operations, dismissed the petition on
the ground that the plaintiffs lacked standing. The circuit court affirmed the DEQ's decision, and
this Court denied leave to appeal. The plaintiffs then filed an action in circuit court pursuant to
the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq., seeking injunctive
relief. Section 1701(1) of MEPA, MCL 324.1701(1), provides:
12
Although the Supreme Court referred to this case with the name of a different defendant, it is
the same case as Tingley v 900 Monroe, L.L.C., supra.
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The attorney general or any person may maintain an action in the circuit
court having jurisdiction where the alleged violation occurred or is likely to occur
for declaratory and equitable relief against any person for the protection of the air,
water, and other natural resources and the public trust in these resources from
pollution, impairment, or destruction.
The circuit court denied the plaintiffs' request for an injunction, ruling that they lacked standing.
This Court reversed, holding that because MCL 324.1701(1) conferred standing upon "any
person" to bring suit, the plaintiffs need not satisfy any further requirements.13 Our Supreme
Court granted leave to appeal, limited to the issue "whether the Legislature can by statute confer
standing on a party who does not satisfy the judicial test for standing. See Lee v Macomb Co Bd
of Comm'rs, 464 Mich 726 (2001)." Nat'l Wildlife Federation v Cleveland Cliffs Iron Co, 468
Mich 944 (2003).
In Nat'l Wildlife, our Supreme Court stated that standing consists of the following
elements:
"First, the plaintiff must have suffered an 'injury in fact'—an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) 'actual
or imminent, not "conjectural" or "hypothetical."' Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be 'fairly . . . traceable to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not before the court.' Third,
it must be 'likely,' as opposed to merely 'speculative,' that the injury will be
'redressed by a favorable decision.'" [Nat'l Wildlife, supra, 471 Mich at 628-629,
quoting Lee, supra, 464 Mich at 739, quoting Lujan v Defenders of Wildlife, 504
US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992) (citations omitted).]
A plaintiff 's pleadings must include general allegations that injury will result from the
defendant's conduct. Thereafter, if the defendant seeks summary disposition, the plaintiff must
support the allegations of injury with documentation. Nat'l Wildlife, supra, 471 Mich at 631.
The Nat'l Wildlife Court noted that organizations such as the plaintiffs had standing to
bring suit on behalf of their members where those members would have standing as individuals.
Id. at 629. The Nat'l Wildlife Court further held that because the plaintiffs in that case presented
affidavits from three individual members stating that the defendants' mining activities would
interfere with their recreational enjoyment of their property, and, in one case, that defendants'
activities had damaged his well, the plaintiffs had demonstrated sufficient injury to their
members to establish standing. Id. at 630.
13
Nat'l Wildlife Federation v Cleveland Cliffs Iron Co, memorandum opinion of the Court of
Appeals, issued June 11, 2002 (Docket No. 232706).
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In this case, in their second amended complaint, plaintiffs alleged that defendants
removed soil and water contaminated with hazardous waste from the B & G site and transported
the soil to a water filtration plant; that Pioneer retaliated for the plaintiffs' reporting of
defendants' violations of the HWMA by dumping contaminated soil on vehicles owned by
Tingley and Bradley; that defendants violated the HWMA by failing to pay dumping fees,
establishing treatment, storage, and disposal facilities at the B & G site and the filtration plant
without a permit from the DEQ, operated the facilities without an operating license from the
DEQ, failing to comply with DEQ regulations for transporting hazardous waste, among others;
and that defendants' violations of the HWMA resulted in damage, including causing human
exposure to hazardous substances at levels considered unsafe by state standards, contamination
of the filtration plant, contamination of other sites, release of contaminated substances into
groundwater and the city's sewer system, and the loss of landfilling fees. Plaintiffs sought
injunctive relief prohibiting defendants from releasing any further hazardous substances and
requiring defendant to clean up any site contaminated by the hazardous waste, sought to require
defendants to pay $25,000 into the state's general fund for each violation of the HWMA, and for
each day of noncompliance in the case of continuing violations, and sought to require defendants
to pay costs and fees, including attorney fees.
MCL 324.11151(1), the citizen suit provision of the HWMA, provides in pertinent part:
The attorney general or a person may commence a civil action against a
person, the department, or a health department certified under section 11145 for
appropriate relief, including injunctive relief for a violation of this part including
a corrective action requirement of this part, or a rule promulgated under this part.
Pursuant to the holding in Nat'l Wildlife, a plaintiff seeking to maintain an action under the
HWMA must satisfy the judicial test for standing, notwithstanding the general language of MCL
324.11151(1). Nat'l Wildlife, supra, 471 Mich at 621.
We conclude that the allegations in plaintiffs' second amended complaint do not support a
finding that plaintiffs had standing to bring suit against defendants under the HWMA, and,
accordingly, conclude that plaintiffs' action must be dismissed. Plaintiffs' second amended
complaint alleges generally that actions taken by defendants named therein violated various
provisions of the HWMA, and that those actions resulted in the contamination of the
environment and human exposure to hazardous substances. However, in their affidavits
submitted in opposition to defendants' motions for summary disposition, plaintiffs did not allege
or make any showing that defendants' actions resulted in actual, particularized injury to them,
that a causal connection existed between defendants' actions and any injuries, and that it was
likely that those injuries would be redressed by a favorable decision. The allegations in
plaintiffs' second amended complaint and in plaintiffs' affidavits submitted in opposition to
defendants' motions for summary disposition did not establish the three elements of standing. Id.
at 628-629.
Plaintiffs' second amended complaint alleged also that Pioneer dumped contaminated soil
on vehicles owned by Tingley and Bradley in retaliation for plaintiffs' reporting of defendants'
illegal activities. Viewing this allegation in a light most favorable to plaintiffs, it states a
particularized injury; however, plaintiffs have not shown that it is likely that this particular injury
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would be redressed by a decision in their favor to the effect that defendants violated the HWMA.
Id.
In light of the requirements for standing articulated in Nat'l Wildlife and the allegations in
plaintiffs' second amended complaint, plaintiffs have not demonstrated that they have standing to
sue under the HWMA. Accordingly, we remand this matter to the trial court for dismissal of
plaintiffs' second amended complaint in its entirety. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
Meter, P.J. I concur in the result only.
/s/ Patrick M. Meter
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