                            STATE OF MICHIGAN

                            COURT OF APPEALS



GREGORY TAYLOR and JAMES NIEZNAJKO,                                 UNPUBLISHED
                                                                    July 18, 2017
               Plaintiffs-Appellants,

v                                                                   No. 331048
                                                                    Genesee Circuit Court
MICHIGAN PETROLEUM TECHNOLOGIES,                                    LC No. 12-098397-NI
INC.,

               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


                                                -1-
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.


                                                -2-
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

                                               -3-
               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

                                               -4-
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)


                                                -5-
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.


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