Appeals Court Rules On Soil Lawsuits

July 2, 2004
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LANSING — The Michigan Court of Appeals reversed a decision made two years ago by Kent County Circuit Court Judge H. David Soet in one of a series of complaints concerning the alleged illegal transfer of contaminated soil to the Monroe Avenue Water Filtration Plant.

By a 2-1 vote, the appellate court ruled that Soet “had no judicial power in this case.”

The case in question involved plaintiff William Tingley III, general manager of Proto-CAM Inc. and executive director of Local Area Watch.

Tingley accused the developers and the financial backer of The Boardwalk — a mixed-use development that emerged from the renovation of the former Berkey & Gay factory — of hauling toxic soil from the site at 940 Monroe Ave. NW to the plant at 1430 Monroe Ave. NW.

He also alleged that the city of Grand Rapids played a role in the soil transfer.

In 2002, Soet granted the defendants their motion for a summary disposition of the charge made by Tingley. Soet also ruled that if Tingley filed further litigation on the matter, he would review any future complaint and decide whether it should be accepted for filing.

Soet said that Tingley was “engaged in the unauthorized practice of law” by representing other plaintiffs. A state statute says unlicensed individuals can only represent themselves.

Tingley and two other plaintiffs then filed another lawsuit in circuit court against many of the same defendants and the case was assigned to Judge Dennis Leiber. But Leiber referred the case to Soet, the court’s chief judge, who dismissed the complaint and then sanctioned Tingley.

The appellate justices ruled that a proper reassignment order was never made and the case belonged to Leiber, not Soet. The court wrote that only Lieber or “an authorized substitute” could “appropriately enter substantive or dispositive orders” in the case.

The court reversed Soet’s decision that Tingley unlawfully represented other plaintiffs in the case. The appellate justices said the evidence submitted didn’t support that ruling.

In other decisions generally related to the same complaint, the appellate court upheld some of the circuit court’s rulings and reversed others.

The court affirmed a claim of sanctions made against the plaintiffs by the defendants. The appellate justices upheld the circuit court’s decision not to grant the plaintiff’s motion for dismissal. They also ruled that the trial court properly denied the plaintiff’s motion for disqualification of the trial court judge.

The appellate court reversed some counts the circuit court ruled on that went against the plaintiffs and ruled that the plaintiffs have the right to sue under the state natural resources and environmental protection act.

In addition to Tingley, plaintiffs in the cases were William Q. Tingley, Daniel Bradley, Proto-Cam, Bend Tooling Inc., and the Tennine Corp.

The defendants were attorneys Robert Wardrop, William Fisher III, Todd Dickinson; law firms Dickinson Wright PLLC, Fisher & Dickinson PC; developers 900 Monroe LLC, 940 Monroe LLC, Pioneer Inc., Dykema Excavators Inc. and financial backer Fifth Third Bancorp. Ward Kortz, Superior Environmental Corp., former mayor John Logie, and the city were also named as defendants.

In the original complaint, Tingley said the developers illegally used an easement that his firm owned to transport the soil from the work site to the filtration plant. The developers said they mistakenly hauled about a half-dozen truckloads of dirt to the plant, but then returned the soil to the work site as soon as they realized what had happened.

Last month, the Attorney General’s office told the Business Journal that soil sampled at the plant did not match the soil at the work site. The state Department of Environmental Quality collected the samples in February.           

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