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L.A. Plaza, Inc. v. Hermiz

ELR Citation: 40 ELR 20005
Nos. No. 293291, (Mich. Ct. App., 10/19/2010)

A Michigan appellate court affirmed a lower court decision that res judicata bars a landowner's CERCLA, tort, and state law actions against a neighboring gasoline station for response costs and other monetary damages. The property owner originally filed suit in 1995, but the case was settled in 1999 and dismissed without prejudice. The property owner also filed suit in 1997 for injunctive relief under Michigan's Natural Resources and Environmental Protection Act (NREPA). The parties entered into another consent agreement in 1999 requiring both parties to take remedial action, but it was set aside in 2007 when the case was settled and dismissed, this time with prejudice. In May 2008, the 1999 settlement agreement of the 1995 lawsuit was also terminated. Two months later, the landowner filed the instant action, alleging theories of nuisance, trespass, and negligence, and seeking response costs under CERCLA and the NREPA. The lower court properly dismissed the case under the doctrine of res judicata. The landowner's claims for response costs and other monetary damages could have been resolved by the court that was presiding over its claim for injunctive relief in the 1997 lawsuit. And despite the gas station's argument to the contrary, the 1999 consent agreement, which allowed the landowner to seek response recovery costs and other monetary damages in a separate action, does not "trump" the doctrine of res judicata since it was set aside in 2007. Nothing in the court's 2007 order indicates that the parties intended that the dismissal of the 1997 lawsuit with prejudice would bar defendants from asserting res judicata in a subsequent suit by the landowner.