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Dishaw v. Somerville Associates6/3/2003
UNPUBLISHED
Plaintiff Tina Dishaw, on behalf of the taxpayers of the Forest Park School District, appeals from the trial court's order granting summary disposition pursuant to MCR 2.116(C)(8) in favor of defendants Somerville Associates, Gundlach Champion, Carlson & Goulette, Inc., and STS Consultants, on the basis of Dishaw's lack of standing to pursue the claims alleged in the instant case. We affirm.
I.
Plaintiff is a resident of Crystal Falls, Michigan, and a taxpayer of the Forest Park School District. Defendants are various contractors involved in the construction of a school addition, which was authorized by voter approval of a $7 million bond in 1997. This addition consisted of approximately 84,000 square feet at the existing high school and a new bus garage. The work also included remodeling of the existing building. The project was inspected by the school district and requisite governmental authorities and accepted by the district as a completed project in August 1998. The building has been used since that time.
In December 2001, plaintiff filed the instant complaint for injunctive relief and damages on behalf of the taxpayers of the Forest Park School District, alleging breach of contract and negligent design and construction of the school addition by defendants. The alleged defects consist for the most part of indoor air quality problems and standing ground water in the lower regions of the building, purportedly resulting in adverse health effects among children and teachers. Plaintiff contends that it will require substantial repair and modification to the facility to correct these problems; as a consequence, she and other taxpayers have incurred damages, including loss of use of the school building, the payment of personal property taxes for the project, and future property taxes to be incurred to repair the deficiencies.
Plaintiff also moved for certification of this matter as a class action. She sought to be declared a representative of a class of taxpayers suing in their individual right or, alternatively, suing in the place of the Forest Park School District which, as the owner of the building, neither brought an action against the architects, contractors or subcontractors, nor took any official board action on the concerns raised by plaintiff.
Defendants thereafter moved for summary disposition pursuant to MCR 2.116(C)(8), asserting that plaintiff, as an individual taxpayer or as a representative suing on behalf of the school district, lacked standing to bring her claim, and that the real party in interest to any claim for injunctive relief or actual damages was the Forest Park School District. Following a hearing on defendants' motions, the trial court took the matter under advisement and ultimately concluded that plaintiff lacked standing to pursue the present action either on behalf of the school district or as an individual taxpayer. The court found that other issues raised by the parties' motions, including class certification, were thus rendered moot. On May 30, 2002, the trial court entered an order dismissing all counts of the complaint on the basis of lack of standing. Plaintiff now appeals.
II.
This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition alleging the real party in interest defense (standing) is properly brought under MCR 2.116(C)(8) or (10) based on the pleadings or other circumstances of the case. Leite v Dow Chemical Co, 439 Mich 920; 478 NW2d 892 (1992). A motion brought pursuant to
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