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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

GREGORY TAYLOR and JAMES NIEZNAJKO,

Plaintiffs-Appellants,

UNPUBLISHED

July 18, 2017

v No. 331048

Genesee Circuit Court

MICHIGAN PETROLEUM TECHNOLOGIES, 

INC.,

LC No. 12-098397-NI

Defendant-Appellee,

and

CONSUMERS ENERGY COMPANY,

Defendant.

Before: O’BRIEN, P.J., and JANSEN and STEPHENS, JJ.

PER CURIAM.

This case arises out of what Gregory Taylor, the named plaintiff, describes as “a massive 

explosion and fire” that occurred in Clio, Michigan, on August 4, 2009, at a facility that was 

operated by Michigan Petroleum Technologies, Inc. (“MPT”). According to Taylor, “[r]esidents 

and business were evacuated from the area and ordered not to return to their homes.” The record 

reflects that the evacuation order remained in place for less than 24 hours. Approximately three 

years after the fire and explosion, Taylor and James Nieznajko filed the original complaint 

against MPT and Consumers Energy Company, asserting nuisance and negligence claims and 

seeking class certification with respect to “[a]ll persons who own homes or property who have 

suffered damage to property, loss of enjoyment of their property or loss of the use of their 

property at any time from August 4, 2009 up to the date of trial . . . as a result of the White Oil 

Fire and Explosion.” MPT eventually moved for summary disposition with respect to both 

claims, and the trial court granted that motion. Taylor appeals as of right that order.

1

 On appeal, 

 1 Nieznajko, the second named plaintiff, was dismissed as a party with prejudice during the 

pendency of this case and is seemingly not involved in this appeal. Consumers Energy Company 
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Taylor argues that the circuit court erred in granting MPT’s motion for summary disposition for 

two reasons. First, Taylor contends, summary disposition was improper because discovery was 

not complete. Second, Taylor contends, summary disposition was improper because a question 

of fact exists with respect to his nuisance and negligence claims. Because we disagree in each 

respect, we affirm.

This Court reviews a trial court’s decision on a motion for summary 

disposition de novo. When reviewing a motion for summary disposition under 

MCR 2.116(C)(10), this Court considers the affidavits, pleadings, depositions, 

admissions, and other evidence submitted by the parties in the light most 

favorable to the party opposing the motion to determine whether a genuine issue 

of material fact exists. The motion is properly granted if there is no genuine issue 

regarding any material fact and the moving party is entitled to judgment as a 

matter of law. [Laster v Henry Ford Health Sys, 316 Mich App 726, 733-734; 

892 NW2d 442 (2016) (internal citations and quotation marks omitted).]

At the outset, Taylor argues that summary disposition was improper because discovery 

was not complete.2 “However, summary disposition before the close of discovery is appropriate 

if there is no reasonable chance that further discovery will result in factual support for the 

nonmoving party.” Colista v Thomas, 241 Mich App 529, 537-538; 616 NW2d 249 (2000). In 

his brief on appeal, Taylor does not specifically indicate whether any further discovery will 

result in factual support for his claims. Rather, he repeatedly points to the lack of discovery, but 

that is not the appropriate inquiry. The appropriate inquiry focuses on whether there is a 

reasonable chance that further discovery would result in factual support for his claim, and, at 

best, Taylor vaguely argues that, “[u]pon remand, additional discovery during the merits phase 

will further substantiate Taylor’s claims” without elaboration. “It is not sufficient for a party 

simply to announce a position or assert an error and then leave it up to this Court to discover and 

rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then 

search for authority either to sustain or reject his position.” Innovation Ventures v Liquid Mfg, 

499 Mich 491, 518; 885 NW2d 861 (2016) (citations and internal quotation marks omitted). 

Consequently, to the extent such an argument might be inferred from Taylor’s brief on appeal, it 

is abandoned. Id.

3

 Therefore, we conclude that the trial court did not err by granting MPT’s 

was also, eventually, dismissed as a party. See Taylor v Petroleum Tech, Inc, 307 Mich App 

189; 859 NW2d 715 (2014).

2 Specifically, Taylor argues, and MPT apparently concedes, that, generally, discovery with 

respect to the merits of Taylor’s claims had not commenced at the time MPT moved for and was 

granted summary disposition. Nevertheless, it should be noted that discovery was ongoing at the 

time the motion was filed; however, that discovery was limited to the issue of class certification, 

which, as mentioned below, did address whether Taylor, as well as other potential plaintiffs, 

could prove certain damages as a result of the fire and explosions.

3 Furthermore, it should be noted that the trial court’s decision to grant summary disposition was 

premised on Taylor’s inability to prove damages, and discovery with respect to damages had 

taken place at the time summary disposition was granted.
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motion for summary disposition before discovery was complete. Whether it erred by granting 

the motion for other reasons, however, presents different issues.

The first is whether a genuine issue of material fact exists on Taylor’s nuisance claim. 

We agree with the trial court that one does not. Our Supreme Court has summarized a private 

nuisance claim, in relevant part, as follows:

Historically, Michigan has recognized two distinct versions of nuisance, 

public nuisance and private nuisance. A private nuisance is a nontrespassory 

invasion of another’s interest in the private use and enjoyment of land. It evolved 

as a doctrine to resolve conflicts between neighboring land uses. Because 

nuisance covers so many types of harm, it is difficult to articulate an 

encompassing definition. Imprecision in defining nuisance leads to confusion 

regarding the interest it is designed to protect. Nevertheless, the gist of a private 

nuisance action is an interference with the occupation or use of land or an 

interference with servitudes relating to land. There are countless ways to interfere 

with the use and enjoyment of land including interference with the physical 

condition of the land itself, disturbance in the comfort or conveniences of the 

occupant including his peace of mind, and threat of future injury that is a present 

menace and interference with enjoyment. The essence of private nuisance is the 

protection of a property owner’s or occupier’s reasonable comfort in occupation 

of the land in question. . . .

According to the Restatement, an actor is subject to liability for private 

nuisance for a non-trespassory invasion of another’s interest in the private use and 

enjoyment of land if (a) the other has property rights and privileges in respect to 

the use or enjoyment interfered with, (b) the invasion is the legal cause of the 

invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) 

unintentional and otherwise actionable under the rules governing liability for 

negligent, reckless, or ultrahazardous conduct.

Prosser & Keeton’s enumeration of the requirements to recover on a 

private nuisance theory is similar. They set forth the following requirements:

(1) The defendant acted with the intent of interfering with 

the use and enjoyment of the land by those entitled to that use;

(2) There was some interference with the use and 

enjoyment of the land of the kind intended, although the amount 

and extent of that interference may not have been anticipated or 

intended;

(3) The interference that resulted and the physical harm, if 

any, from that interference proved to be substantial. It is this 

requirement and the next that is most important in distinguishing 

between trespassory-type invasions from those that are actionable 

on a nuisance theory. Any intentional and unprivileged entry on 
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land is a trespass without a showing of damage, since those who 

own land have an exclusive right to its use; but an act that 

interferes with use but is not in itself a use is not actionable 

without damage. The substantial interference requirement is to 

satisfy the need for a showing that the land is reduced in the value 

because of the defendant’s conduct;

(4) The interference that came about under such 

circumstances was of such a nature, duration or amount as to 

constitute unreasonable interference with the use and enjoyment of 

the land. This does not mean that the defendant’s conduct must be 

unreasonable. It only means that the interference must be 

unreasonable and this requires elaboration.

* * *

The doctrine of nuisance traditionally encompassed geographic, temporal, 

and proprietary aspects. . . .

In temporal terms, nuisance normally required some degree of 

permanence. If the asserted interference was temporary and evanescent, there 

was no actionable nuisance. This requirement is normally subsumed in the 

question whether the interference with the use and enjoyment of property is 

substantial. . . .

As the doctrine of trespass was gradually transmuted into the action upon 

the case for nuisance, the requirement that the injury involve entry onto the 

complainant’s land was eliminated. To limit the broader action on the case for

nuisance, courts added the requirement that a litigant seeking to recover for 

nuisance must show a legally cognizable injury, requiring proof of a significant 

interference with the use and enjoyment of land. Although much confusion has 

arisen because of the failure to discern that injury and damage are different 

concepts, an interference that is not substantial and unreasonable does not give 

rise to an action for damages against the person causing it, damnum absque 

injuria. Stated otherwise, while nuisance may be predicated on conduct of a 

defendant that causes mental annoyance, it will not amount to a substantial injury 

unless the annoyance is significant and the interference is unreasonable in the 

sense that it would be unreasonable to permit the defendant to cause such an 

amount of harm without paying for it. [Adkins v Thomas Solvent Co, 440 Mich 

293, 302-310; 487 NW2d 715 (1992) (citations omitted).]

Consequently, “[o]nly for a substantial interference with the use and enjoyment of property 

would an action lie.” Id. at 310.

On appeal, Taylor argues that the determination whether the alleged nuisance constituted 

substantial interference as required by Adkins was for the jury, not the trial court, to make. We 

disagree. As indicated above, a private nuisance claim requires that a plaintiff prove significant 
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and unreasonable interference. Adkins, 440 Mich at 309-310. Taylor has not demonstrated an 

ability to do so. The record reflects that the only damage allegedly suffered by Taylor was a 

temporary evacuation. As the trial court recognized, the evacuation order was in effect for less 

than 24 hours, which, in our view, is insufficient to constitute the significant and unreasonable 

harm that is required under Adkins. While Taylor is correct in his assertion that Adkins and this 

case are factually distinguishable, that assertion, alone, does not alter our conclusion. Therefore, 

we conclude that the trial court correctly granted summary disposition with respect to Taylor’s 

nuisance claim.

The second issue is whether a genuine issue of material fact exists on Taylor’s negligence 

claim. We agree with the trial court that one does not. “ ‘To establish a prima facie case of 

negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the 

plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.’ ” Quinto v Woodward 

Detroit CVS, LLC, 305 Mich App 73, 75; 850 NW2d 642 (2014), quoting Case v Consumers 

Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).

Proving causation requires proof of both cause in fact and proximate 

cause. Cause in fact requires that the harmful result would not have come about 

but for the defendant’s negligent conduct. Cause in fact may be established by 

circumstantial evidence, but such proof must facilitate reasonable inferences of 

causation, not mere speculation. A plaintiff must present substantial evidence 

from which a jury may conclude that more likely than not, but for the defendant’s 

conduct, the plaintiff’s injuries would not have occurred. A mere possibility of 

such causation is not sufficient; and when the matter remains one of pure 

speculation and conjecture, or the probabilities are at best evenly balanced, it 

becomes the duty of the court to direct a verdict in favor of the defendant. 

Normally, the existence of a cause in fact is a question for the jury to decide, but 

if there is no issue of material fact, the question may be decided by the court. 

[Genna v Jackson, 286 Mich App 413, 417-418; 781 NW2d 124 (2009) (internal 

citations and quotation marks omitted).]

On appeal, Taylor argues that the trial court erred by dismissing its negligence claim as a 

discovery sanction. Even if we assume that this is true, we nevertheless conclude that the trial 

court correctly granted MPT’s motion for summary disposition, even if it did so for the wrong 

reason.4 Stated simply, nothing in the record, beyond Taylor’s own speculation, supports 

 4 It is not entirely clear, at least in our view, that the trial court granted MPT’s motion for 

summary disposition as a discovery sanction for discarding the pool. While the trial court did 

mention the fact that the pool was discarded, it appears that its mention in this regard was only 

one factor of many that led to its ultimate decision. Indeed, it appears that the trial court’s 

decision to grant MPT’s motion for summary disposition was based on Taylor’s inability to offer 

anything but mere speculation to support its decision. Nevertheless, even if we assume that the 

trial court dismissed Taylor’s negligence claim as a discovery sanction, we can still affirm the 

ultimate decision. See Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) 
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Taylor’s position. He claims that the fire and explosion at issue damaged his pool, but he 

discarded the pool, and the only evidence of any damage, much less the causation of that 

damage, is his self-serving speculation that the pool was damaged by the fire and explosion. 

According to him, there was some sort of sediment on the top or inside of part of the pool. In 

our view, that testimony, alone, is insufficient. Therefore, we conclude that the trial court 

correctly granted summary disposition with respect to Taylor’s negligence claim as well.

Affirmed.5 MPT, as the prevailing party, may tax costs pursuant to MCR 7.219.

/s/ Colleen A. O'Brien 

/s/ Kathleen Jansen 

(“A trial court’s ruling may be upheld on appeal where the right result issued, albeit for the 

wrong reason.”).

5 Taylor also argues that the trial court abused its discretion by denying his motion for 

reconsideration. However, “a motion for rehearing or reconsideration which merely presents the 

same issues ruled on by the court, either expressly or by reasonable implication, will not be 

granted.” MCR 2.119(F)(3). As Taylor expressly acknowledges in his brief on appeal, his 

“motion for reconsideration raised substantively similar points as those discussed supra with 

respect to the trial court’s improper ruling . . . .” Therefore, under MCR 2.119(F)(3), the trial 

court did not abuse its discretion in denying Taylor’s motion.