Michigan Supreme Court 

# Order

Lansing, Michigan

April 7, 2006 Clifford W. Taylor,
Chief Justice

128901 Michael F. Cavanagh 128907 Elizabeth A. Weaver 128909 Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, WILLIAM Q. TINGLEY, III, WILLIAM Q. Justices TINGLEY, and DANIEL R. BRADLEY, Plaintiffs-Appellees, and

PROTO-CAM, INC., BEND TOOLING, INC., and TENNINE CORPORATION, Plaintiffs,

v SC: 128901 COA: 243171 Kent CC: 02-003723-NZ ROBERT F. WARDROP, II, WILLIAM J. FISHER III, TODD R. DICKINSON, WARDROP & WARDROP, P.C., DI CKINSON WRIGHT, PLLC, FISHER & DICKINSON, P.C., 900 MONROE LLC, 940 MONROE LLC, PIONEER INCORPORATED, DYKE MA EXCAVATORS, INC., and FIFTH THIRD BANCORP, Defendants, and

CITY OF GRAND RAPIDS and JOHN H. LOGIE, Defendants-Appellants.

________________ _______________ __________/

WILLIAM Q. TINGLEY, III, WILLIAM Q. TINGLEY, and DANIEL R. BRADLEY, Plaintiffs-Appellees, and

PROTO-CAM, INC., BEND TOOLING, INC., and TENNINE CORPORATION, Plaintiffs,

v SC: 128907 COA: 243171 Kent CC: 02-003723-NZ ROBERT F. WARDROP, II, WILLIAM J. FISHER III, TODD R. DICKINSON, WARDROP2

& WARDROP, P.C., DI CKINSON WRIGHT, PLLC, FISHER & DICKINSON, P.C., DYKEMA EXCAVATORS, INC., FI FTH THIRD BANCORP, CITY OF GRAND RAPIDS, and JOHN H. LOGIE Defendants, and

900 MONROE LLC, 940 MONROE LLC, and PIONEER INCORPORATED, Defendants-Appellants.

________________ _______________ __________/

WILLIAM Q. TINGLEY, III, WILLIAM Q. TINGLEY, and DANIEL R. BRADLEY, Plaintiffs-Appellees, and

PROTO-CAM, INC., BEND TOOLING, INC., and TENNINE CORPORATION, Plaintiffs,

v SC: 128909 COA: 243171 Kent CC: 02-003723-NZ ROBERT F. WARDROP, II, WILLIAM J. FISHER III, TODD R. DICKINSON, WARDROP & WARDROP, P.C., DI CKINSON WRIGHT, PLLC, FISHER & DICKINSON, P.C., 900 MONROE LLC, 940 MONROE LLC, PIONEER INCORPORATED, CITY OF GRAND RAPIDS, JOHN H. LOGIE, and FI FTH THIRD BANCORP, Defendants, and

DYKEMA EXCAVA TORS, INC., Defendant-Appellant.

________________ _______________ __________/

On order of the Court, th e applications for leave to appeal the May 5, 2005 judgment of the Court of Appeals are consid ered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE that judgment and the June 24, 2004 Court of Appeals judgment, and we REMAND th is case to the Cour t of Appeals for reconsideration in light of National Wildlife Federation v Cleveland Cliffs Iron Co , 471 Mich 608 (2004), and plaintiffs ' second amende d complaint.

We do not retain jurisdiction.

M ARKMAN , J., concurs and states as follows:3

I concur in the majority’s order remandi ng this case to the Court of Appeals for reconsideration in light of Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004), and plaintiffs’ sec ond amended complaint. I write separately only to respond

to the dissent.

First, the dissent asserts that in Nat’l Wildlife , this Court “fundamentally changed and heightened the burden to establish sta nding to pursue statutory causes of action when they created new Michigan law and superimposed federal constitutional standing constraints on plaintiffs.” Post . With all due respect , this characterization of Nat’l Wildlife is in error. Rather, for the reasons set fo rth at length in that opinion, we merely

reaffirmed traditional understa ndings of the se paration of pow ers under both the Michigan and the United States Constitutions, explaining the importance of standing for the “preservation of a judiciary op erating within prop er boundaries.” Nat’l Wildlife,

supra at 612.

Second, the dissent asserts that this Court “does not have jurisdiction,” post , over this appeal. Such an assertion is correct only if the Court of Appeal s is allowed to render

an unreviewable decision in a dispute over which it lacks juri sdiction, something that the Court of Appeals itself subseque ntly recognized to be the case. In the process, the Court of Appeals conferred standing where the tria l court had previously concluded standing

did not exist. The dissent a sserts that the Court of Appeal s may render a decision that it has no jurisdiction to render, an d that a party has no ability to appeal such decision. I respectfully disagree.

C AVANAGH and K ELLY , JJ., would deny leave to appeal.

W EAVER , J., dissents and states as follows:

This Court does not have jurisdiction over the subject matter of this appeal. I, therefore, dissent from the major ity’s order vacating the June 24, 2004, judgment of the Court of Appeals and its or der remanding this case to the Court of Appeals for reconsideration in light of Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004).

In Nat’l Wildlife, a majority of four justices of this Court fund amentally changed and heightened the burden to establish sta nding to pursue statutory causes of action when they created new Michigan law and superimposed federal constitutional standing constraints on plaintiffs. 1

1 It cannot reasonably be disputed that Nat’l Wildlife fundamentally changed Michigan’s standing doctrine. Nat’l Wildlife transformed the language of Michigan standing doctrine from one involving prudential lim itations to one incorporatin g federal cons titutional law that had previously been understood to not apply to state courts. See ASARCO, Inc v4

Defendants appeal from an opinion that was issued by the Court of Appeals on May 5, 2005. As w ill be explained here later, the Court of Appeal s did not have jurisdiction to issue that opini on. Because the Court of App eals did not have jurisdiction to issue its May 5, 2005, opini on, this Court has no jurisdic tion over the subject matter of this appeal. Therefore, I would deny leave to appeal for lack of jurisdiction and allow this case to proceed properly in the circuit court on remand from the first Court of Appeals opinion in this case, whic h was issued on June 24, 2004. 2

The Court of Appeals has jurisdiction as prov ided by law. Const 1963, art 6, § 10. The law provides in relevant part that the Court of Appeals has jurisdiction over “all final judgments from the circuit court . . . .” MCL 600.308(1)(a). The Court of Appeals did have jurisdiction over this case when plaintiffs appealed to the Court of Appeals from the circuit court order that granted defendants’ motions for summary disposition.

In the first Court of Appeals opinion, th e Court concluded that the plaintiffs had standing pursuant to MCL 324.11151(1), because the statute “expressly permits an individual to bring a civil action to remedy vi olations of the act an d does not restrict the ability to sue to only those p ersons whose individual interests are harmed.” The Court of Appeals, therefore, reversed the circuit cour t order dismissing plaintiffs’ case and

remanded the case to the circuit court.

Defendants did not appeal from the first Court of Appeals judgment, even though Nat’l Wildlife was decided during the prescribed appeal period on July 30, 2004. 3 The circuit court received the June 24, 2004, opinion of the Cour t of Appeals on June 25,

2005. Jurisdiction was reveste d in the circuit court by the issuance of the Court of Appeals opinion pursuant to MCR 7.215(F)(1)(b). 4 Neither party objected to the circuit court’s exercise of jurisdiction. 5

Kadish, 490 US 605, 617 (1989). In deed, the case upon which the Nat’l Wildlife majority relied, Lee v Macomb Co Bd of Comm’rs , 464 Mich 726, 740 (2001), expressly acknowledged that importing federal constitutio nal constraints into Michigan’s standing

doctrine “should be seen as su pplementing” Michigan standing doctrine, in other words, it changed it. Nat’l Wildlife, supra at 653 n 4 (Weaver, J., concurring in result only ).

2 Tingley v 900 Monroe, LLC , unpublished opinion (Docke t Nos. 243171, 244609).

3 The defendants had 42 days to appeal fro m the Court of Appeals judgment. MCR 7.302(C).

4 See People v George, 399 Mich 638, 639-64 0 (1977), addressing “how and when an opinion of the Court of A ppeals becomes effective for pu rposes of execution or

enforcement” under the 1963 General Court Rules.5

On remand, the circuit court allowed plain tiffs to file a second amended complaint and affidavits asserting standing under the test established in Nat’l Wildlife and the defendants requested summ ary disposition based on Nat’l Wildlife . After conducting hearings on the parties’ moti ons in December 2004, the circu it court denied defendants’ motions for summary disposition, concluding on January 20, 2005 , that all but one plaintiff had alleged standing adequate to survive the test of Nat’l Wildlife

.

Despite this progression of the case on remand in the circuit court

, on February 22, 2005, the Court of Appeals on its own motion reversed its first ju dgment of June 24, 2004, in light of Nat’l Wildlife. Tingley v Wardrop, Docket Nos. 243171, 244609. There is no provision in the statutes or court ru les for the Court of Appeals to have exercised jurisdiction over the case eight months after it issued its firs t opinion on June 24, 2004. Neither party had appealed fr om or requested reconsidera tion of the June 24, 2004, judgment. The June 24, 2004 , judgment was the Court of Appeals final judgment in the matter. MCR 7.215(E)(1). Because that judgment was not appealed, it was in effect and enforceable pursuant to MCR 7.215(F)(1)(a). Thus, the Court of Appeals had no jurisdiction over the case when it later attempted to change the result of the case in light of the new law created by Nat’l Wildlife

.

The Court of Appeals soon recognized that it did not have juri sdiction to reverse itself. To correct its error, on May 5, 2005, the Court of Appeals properly vacated its second order and opinion of February 22, 2005. 6 However, the Cour t of Appeals then attempted to reissue, reinstate, and repub lish its June 24, 2004 , opinion that had concluded that plaintiff had stan ding under the statute at issue. 7

5 There is some question when and whether th e Court of Appeals had remitted the record to the circuit court. However, there is no dispute that the circuit court had subject matter jurisdiction over the cas e after the remand order issued. Further, if the circuit court exercised jurisdiction ov er the case without th e record having been remitted then its orders are merely voida ble, not void. Jackson City Bank & Trust Co v Fredrick , 271 Mich 538 (1935). Defendants di d not object to the circuit c ourt’s exercise of jurisdiction and it is not clear whether any defendant a ppealed from the circu it court’s order on

remand that denied their motions for summ ary disposition. Instead, the defendants attempt to bootstrap attacks on the circuit court’s jurisdic tion in this appeal from the Court of Appeals May 5, 2005, decision.

6 Reed v Yackell , 473 Mich 520, 540 (2005).

7 266 Mich App 233 (2005).6

It is from the May 5, 2005, republica tion of the June 24, 2004, opin ion that defendants attempt to appeal. However, by correcting its jurisdictional mistake and vacating its second order and opinion, the pu blished June 24, 2004 , judgment of the Court of Appeals was again in effect and en forceable. The Court of Appeals could not reassert jurisdiction over the subject matter of the case. More impo rtantly, the Court of Appeals could not create a new appellate timeline through the republication of its June 24, 2004, opinion.

It is incorrect for this Court to permit th e May 5, 2005, opinio n to establish a new

and extended timeline under which the defe ndants can pursue an appeal. An error correction by the Court of Appe als should not be permitted to extend or revive a litigant’s appellate rights. Nevertheless, as a result of the confusion of appeals, the circuit court stayed its proceedings in this case in July 2005 pending the resolution of these appeals.

It is not surprising that the defendants seized the opportunity created by the Court of Appeals jurisdictional error to seek leave to appeal to this Court from the May 5, 2005, opinion. As defendants may ha ve hoped, this strategy, wi th this Court majority’s assistance, has compensated fo r defendants’ failure to app eal from the first Court of Appeals judgment and has apparently rendered moot the circuit court’s decision to deny

defendants’ motions for summ ary disposition in light of plaintiffs’ second amended complaint.

However, because the Cour t of Appeals did not have jurisdiction over the subject matter of the case on May 5, 2 005, this Court does no t have jurisdiction over this appeal. Where a lower court does not have jurisdicti on over the subject matt er of a case, neither does the superior appellate court. As we explained in a case where the probate court did not have subject-matter jurisdiction:

The probate court had no jurisd iction. The circuit court had no greater jurisdiction of the case than had the probate court. The probate court having no jurisdiction, the ci rcuit court acquired none by appeal, and this [Supreme Court] has none. [ In re Fraser Estate, 288 Mich 392, 395 (1934)(citations omitted).]

Finally, affording defendants this opportunity is unfair. The majo rity’s order gives

defendants a second bite of the apple. It allows defendants to attack plaintiffs’ standing

under Nat’l Wildlife’s heightened test, despite the fact th at the defendants failed to appeal from the Court of Appeals firs t judgment and have been de nied summary disposition by the circuit court in the proceedings on remand from the first C ourt of Appeals decision.

It is also not clear whether the defendants ever appealed th e circuit court’s denial of summary disposition._______________________________________ __ 7

I would deny leave to appeal.

d0404 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 7, 2006

Clerk