Order                                                            Michigan Supreme Court
                                                                       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.
  WILLIAM Q. TINGLEY, III, WILLIAM Q.                                    Stephen J. Markman,
                                                                                        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., DICKINSON WRIGHT, 

  PLLC, FISHER & DICKINSON, P.C., 900 

  MONROE LLC, 940 MONROE LLC, PIONEER 

  INCORPORATED, DYKEMA 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, WARDROP 

                                                                                      2

& WARDROP, P.C., DICKINSON WRIGHT,
PLLC, FISHER & DICKINSON, P.C., DYKEMA
EXCAVATORS, INC., FIFTH 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., DICKINSON WRIGHT,
PLLC, FISHER & DICKINSON, P.C., 900
MONROE LLC, 940 MONROE LLC, PIONEER
INCORPORATED, CITY OF GRAND RAPIDS,
JOHN H. LOGIE, and FIFTH THIRD BANCORP,
             Defendants,
and
DYKEMA EXCAVATORS, INC.,
           Defendant-Appellant.
_________________________________________/

        On order of the Court, the applications for leave to appeal the May 5, 2005
judgment of the Court of Appeals are considered 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 this case to the Court of Appeals for
reconsideration in light of National Wildlife Federation v Cleveland Cliffs Iron Co, 471
Mich 608 (2004), and plaintiffs' second amended complaint.

      We do not retain jurisdiction.

      MARKMAN, J., concurs and states as follows:
                                                                                          3

        I concur in the majority’s order 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), and plaintiffs’ second 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 standing 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 forth at length in that opinion, we merely
reaffirmed traditional understandings of the separation of powers under both the
Michigan and the United States Constitutions, explaining the importance of standing for
the “preservation of a judiciary operating within proper 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 Appeals is allowed to render
an unreviewable decision in a dispute over which it lacks jurisdiction, something that the
Court of Appeals itself subsequently recognized to be the case. In the process, the Court
of Appeals conferred standing where the trial court had previously concluded standing
did not exist. The dissent asserts that the Court of Appeals may render a decision that it
has no jurisdiction to render, and that a party has no ability to appeal such decision. I
respectfully disagree.

       CAVANAGH and KELLY, JJ., would deny leave to appeal.

       WEAVER, J., dissents and states as follows:

       This Court does not have jurisdiction over the subject matter of this appeal. I,
therefore, dissent from the majority’s order vacating the June 24, 2004, judgment of the
Court of Appeals and its order 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 fundamentally changed
and heightened the burden to establish standing 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 limitations to one incorporating federal constitutional law
that had previously been understood to not apply to state courts. See ASARCO, Inc v
                                                                                          4


       Defendants appeal from an opinion that was issued by the Court of Appeals on
May 5, 2005. As will be explained here later, the Court of Appeals did not have
jurisdiction to issue that opinion. Because the Court of Appeals did not have jurisdiction
to issue its May 5, 2005, opinion, this Court has no jurisdiction 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, which was issued on June 24, 2004.2

        The Court of Appeals has jurisdiction as provided 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, the 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 violations of the act and does not restrict the
ability to sue to only those persons whose individual interests are harmed.” The Court of
Appeals, therefore, reversed the circuit court 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 Court of Appeals on June 25,
2005. Jurisdiction was revested 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). Indeed, 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 constitutional constraints into Michigan’s standing
doctrine “should be seen as supplementing” 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 (Docket Nos. 243171, 244609).
3
  The defendants had 42 days to appeal from the Court of Appeals judgment. MCR
7.302(C).
4
  See People v George, 399 Mich 638, 639-640 (1977), addressing “how and when an
opinion of the Court of Appeals becomes effective for purposes of execution or
enforcement” under the 1963 General Court Rules.
                                                                                          5


        On remand, the circuit court allowed plaintiffs to file a second amended complaint
and affidavits asserting standing under the test established in Nat’l Wildlife and the
defendants requested summary disposition based on Nat’l Wildlife. After conducting
hearings on the parties’ motions in December 2004, the circuit 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 judgment 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 rules for the Court of Appeals to have exercised
jurisdiction over the case eight months after it issued its first opinion on June 24, 2004.
Neither party had appealed from or requested reconsideration 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 jurisdiction 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 Court of Appeals then
attempted to reissue, reinstate, and republish its June 24, 2004, opinion that had
concluded that plaintiff had standing under the statute at issue.7




5
  There is some question when and whether the 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 case after the remand order issued. Further, if the circuit court
exercised jurisdiction over the case without the record having been remitted then its
orders are merely voidable, not void. Jackson City Bank & Trust Co v Fredrick, 271
Mich 538 (1935). Defendants did not object to the circuit court’s exercise of jurisdiction
and it is not clear whether any defendant appealed from the circuit court’s order on
remand that denied their motions for summary disposition. Instead, the defendants
attempt to bootstrap attacks on the circuit court’s jurisdiction 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, republication of the June 24, 2004, opinion that
defendants attempt to appeal. However, by correcting its jurisdictional mistake and
vacating its second order and opinion, the published June 24, 2004, judgment of the
Court of Appeals was again in effect and enforceable. The Court of Appeals could not
reassert jurisdiction over the subject matter of the case. More importantly, 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 the May 5, 2005, opinion to establish a new
and extended timeline under which the defendants can pursue an appeal. An error
correction by the Court of Appeals 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 have hoped, this strategy, with this Court majority’s
assistance, has compensated for defendants’ failure to appeal from the first Court of
Appeals judgment and has apparently rendered moot the circuit court’s decision to deny
defendants’ motions for summary disposition in light of plaintiffs’ second amended
complaint.

       However, because the Court of Appeals did not have jurisdiction over the subject
matter of the case on May 5, 2005, this Court does not have jurisdiction over this appeal.
Where a lower court does not have jurisdiction over the subject matter 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 jurisdiction. The circuit court had no
       greater jurisdiction of the case than had the probate court. The probate
       court having no jurisdiction, the circuit 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 majority’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 that the defendants failed to appeal
from the Court of Appeals first judgment and have been denied summary disposition by
the circuit court in the proceedings on remand from the first Court of Appeals decision.
It is also not clear whether the defendants ever appealed the circuit court’s denial of
summary disposition.
                                                                                                        7


I would deny leave to appeal.




                  I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
            foregoing is a true and complete copy of the order entered at the direction of the Court.
                  April 7, 2006                       _________________________________________
d0404                                                                 Clerk
