e-Journal Summary

e-Journal Number : 62374
Opinion Date : 03/31/2016
e-Journal Date : 04/04/2016
Court : Michigan Court of Appeals
Case Name : Tennine Corp. v. Boardwalk Commercial, L.L.C.
Practice Area(s) : Environmental Law, Litigation
Judge(s) : O’Brien, Saad, and Stephens
Full Text Opinion

“Standing” under the Natural Resources & Environmental Protection Act (NREPA) (MCL 324.101 et seq.); Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ.; Trademark Props. of MI, LLC v. Federal Nat’l Mtg. Ass’n; The “citizen suit” provision (MCL 324.20135); 1031 Lapeer LLC v. Rice; Flanders Indus., Inc. v. Michigan; Effect of the fact the plaintiff was a corporation; “Person” (MCL 324.301(h)); Hayes v. Neshewat; “Environment” (MCL 324.20101(1)(o)); Defining “enjoyment”; Principle that a corporation may “enjoy” its real property; Grand Rapids, N & LSR Co. v. Grand Rapids & IR Co.; Purpose of Part 201 of the NREPA (titled Environmental Remediation) (MCL 324.20101-MCL 324.20142); MCL 324.20102(c) & (g); “Hazardous substance” (MCL 324.20101(x)(ii)); Offer of judgment sanctions; MCR 2.405; Lech v. Huntmore Estates Condo. Ass’n; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Applicability of the “interest of justice” exception (MCR 2.405(D)(3)); Luidens v. 63rd Dist. Court; Derderian v. Genesys Health Care Sys.; AFP Specialties, Inc. v. Vereyken; Principle that the nonmoving party must establish a genuine issue of material fact with admissible documentary evidence; Ghaffari v. Turner Constr. Co. (On Remand); Central Michigan Railway Company (CMR); Railroad right-of-way (ROW)


Holding that the plaintiff-corporation had standing to sue under the NREPA, the court reversed the trial court’s grant of summary disposition to defendant-CMR as to plaintiff’s NREPA claim and remanded. However, it upheld the trial court’s award of offer of judgment sanctions to three other defendants (the Boardwalk defendants), rejecting plaintiff’s claim that the interest of justice exception applied. CMR owned real property conveyed to it as a ROW. A work crew entered plaintiff’s adjacent property and demolished tracks and rails on parts of the ROW. “Soil from the ROW clung to the backhoes and was allegedly tracked onto plaintiff’s property. Plaintiff’s representative told the crew that the soil on the ROW was contaminated with hazardous chemicals and that the crew did not have permission to enter plaintiff’s property.” A crew member allegedly indicated that “an agent of the Boardwalk defendants” gave the crew “permission to enter the property.” The trial court ruled that “because plaintiff was a corporation, plaintiff was not a person whose health or enjoyment of the environment could be adversely affected by a release of hazardous chemicals, relying on the decision in Flanders.” However, Flanders “did not hold that a corporation lacked standing under the NREPA simply because of its corporate status” and was distinguishable. As the NREPA includes a corporation in the definition of a person, plaintiff was “a person under the NREPA.” The court then focused on “whether plaintiff, as a corporation, may suffer from loss of the enjoyment of the environment as a result of any release.” Reviewing the NREPA’s definition of environment and dictionary definitions of enjoyment, the court noted that the Michigan Supreme Court “has long held that a corporation may ‘enjoy’ its real property.” It concluded that “the plain language of MCL 324.20135(1) affords a corporation standing to sue if its ‘enjoyment of the environment is or may be adversely affected by’ a release or threat of release of hazardous substances.” Further, preventing a corporation from suing “under the NREPA would be contrary to the stated purpose and goals of Part 201.” Affirmed in part, reversed in part, and remanded.

Full Text Opinion