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Michigan Supreme Court Lansing, Michigan

Opinion
FEDERATED INSURANCE COMPANY and CARL M. SCHULTZ, INC., Plaintiffs-Appellees, v OAKLAND COUNTY ROAD COMMISSION, Defendant-Appellee. and ATTORNEY GENERAL, Intervenor-Appellant. _______________________________ BEFORE THE ENTIRE BENCH TAYLOR, C.J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 21, 2006

No. 126886

At issue in this case is whether the Attorney General can appeal as an intervenor in this Court on behalf of the people and a state agency when the named losing parties did not themselves seek review in this Court. Notwithstanding the Attorney General's broad statutory authority to intervene in cases, we hold that to pursue such an appeal as an intervenor there must be a justiciable controversy,

which in this case requires an appeal by an "aggrieved party." Because neither of the losing parties below filed a timely appeal, and because the Attorney General does not represent an aggrieved party for purposes of this case, there is no longer a justiciable controversy. Under such circumstances, the Attorney General may not independently appeal the Court of Appeals judgment. We therefore dismiss this appeal. I. Facts and Procedural History In 1988, Carl M. Schultz, Inc. (hereafter plaintiff), discovered that an underground storage tank and piping system located on its property had released petroleum into the soil. The Department of Natural Resources (DNR) directed plaintiff to take action to remedy this situation, and, in 1991, plaintiff began constructing an on-site treatment system. In 1992, the treatment system began operation, and, in 1993, the DNR approved plaintiff's site investigation work plan. In 1991, defendant Oakland County Road Commission released petroleum on property adjacent to plaintiff's property. In 1992, plaintiff began to suspect that some of this petroleum had migrated onto its property. By 1995, the DNR concluded that at least some of the petroleum detected on plaintiff's property had originated from defendant's property. In 2000, plaintiff and its insurer, Federated Insurance Company, filed a cost-recovery action against defendant pursuant to provisions of the Natural Resources and Environmental Protection Act (NREPA),

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MCL 324.20101 et seq., for the added costs associated with the cleanup of petroleum contaminants that had originated from defendant's property. The trial court granted defendant's motion for summary disposition, concluding that the action was barred by the six-year limitations period found in the NREPA, and the Court of Appeals affirmed. 263 Mich App 62; 687 NW2d 329 (2004). On behalf of the people of the state and the Michigan Department of Environmental Quality (MDEQ) (the successor to the DNR), which had never been a party in the trial court proceedings or in the appeal in the Court of Appeals, the Attorney General then filed a timely application for leave to appeal in this Court as an intervening appellant. Plaintiffs, however, did not file a timely

application for leave to appeal even though they "lost" under the Court of Appeals opinion. This Court granted the Attorney General's application for leave to appeal and denied plaintiffs' cross-application for leave to appeal. 472 Mich 898 (2005).1

Plaintiffs filed an application for leave to appeal in this Court after the deadline for filing an application for leave to appeal had expired. Plaintiffs sought to avoid MCR 7.302(C)(3) ("[l]ate applications will not be accepted") by designating the appeal as a cross-application for leave to appeal. Plaintiffs' "cross-application" fully supported the Attorney General-intervening appellant's application for leave to appeal. But, plaintiffs cannot be considered crossappellants where their position is the same as that taken by the Attorney Generalintervening appellant. Therefore, although plaintiffs referred to their application for leave to appeal as a cross-application, it was actually an untimely application for leave to appeal. This is why we denied plaintiffs' application.

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II. Standard of Review Defendant argues that the Attorney General lacks the authority to intervene to appeal the judgment of the Court of Appeals. Because this issue implicates the constitutional authority of the judiciary and the Attorney General, we review it de novo. Co Rd Ass'n of Michigan v Governor, 474 Mich 11, 14; 705 NW2d 680 (2005). III. Analysis Following adjudication in the Court of Appeals that resulted in a published opinion, where the parties were plaintiffs Federated Insurance Company and Carl M. Schultz, Inc., and defendant Oakland County Road Commission, the Attorney General, representing the people of the state and the MDEQ, has now sought to appeal in this Court, even though neither of the losing parties in the Court of Appeals sought timely leave to appeal. The Attorney General argues that the Court of Appeals misconstrued MCL 324.20140(1)(a), a statute that the MDEQ frequently litigates. Resolution of whether this intervention and appeal are

permissible implicates standing, the "aggrieved party" concept, and what constitutes a justiciable controversy. As we indicated in Nat'l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004), citing Lee v Macomb Co Bd of Comm'rs, 464 Mich 726, 734; 629 NW2d 900 (2001), standing refers to the right

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of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact. In such a situation it is usually the case that the defendant, by contrast, has no injury in fact but is compelled to become a party by the plaintiff's filing of a lawsuit. In appeals, however, a similar interest is vindicated by the requirement that the party seeking appellate relief be an "aggrieved party" under MCR 7.203(A) and our case law.2 This Court has previously stated, "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948), citing In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936).3 An

See, e.g., Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 225; 249 NW2d 29 (1976) (Coleman, J.), citing In re Critchell Estate, 361 Mich 432; 105 NW2d 417 (1960). "`A party who could not benefit from a change in the judgment has no appealable interest.'" "`[O]f course one may not appeal from a judgment, order or decree, in his favor by which he is not injuriously affected.'" Id. at 226, quoting 4 Am Jur 2d, Appeal and Error,

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