In re Surety Bond for Costs

Per Curiam. Defendants and third-party plaintiffs Oakland Disposal, Inc.; Bestway Recycling, Inc.; Aaro Disposal, Inc.; and Oakland Disposal No. 1 (hereinafter collectively referred to as third-party plaintiffs) appeal as of right from an order dismissing their complaint for failure to file a security bond. We affirm. This case arises from litigation surrounding the Waterford Hills Sanitary Landfill (whsl). The landfill allegedly leaked hazardous substances, and the Attorney General brought a suit seeking damages and injunctive relief relating to cleanup at the site. Third-party plaintiff Oakland Disposal owned and operated the whsl at the time the hazardous waste problems were discovered. The other third-party plaintiffs are apparently related to Oakland Disposal. Third-party plaintiffs brought a suit against over four hundred third-party defendants seeking contribution. Third-party plaintiffs claimed that the third-party defendants all generated hazardous waste that ended up at the whsl. Third-party defendants protested that the third-party complaint was factually deficient and requested a more definite statement. When such a statement was not forthcoming, the trial court gave third-party plaintiffs thirty days to file an amended complaint with specific factual allegations concerning each third-party defendant. The trial court also ordered third-party plaintiffs to file a $500,000 security bond pursuant to MCR 2.109. Third-party plain — 331 — tiffs filed an amended complaint, but failed to file the required bond. Instead, third-party plaintiffs filed an affidavit stating that Oakland Disposal was financially unable to post such a bond. The trial court then dismissed the third-party complaint because the bond had not been filed. The only issue on appeal is whether the trial court’s order requiring a bond was proper. We review a trial court’s decision to require a security bond for an abuse of discretion. Farleigh v Amalgamated Transit Union, Local 1251, 199 Mich App 631, 633; 502 NW2d 371 (1993). Pursuant to MCR 2.109, a court may require a plaintiff to post security for costs: (A) Motion. On motion of a party against whom a claim has been asserted in a civil action, if it appears reasonable and proper, the court may order the opposing party to file with the court clerk a bond with surety as required by the court in an amount sufficient to cover all costs and other recoverable expenses that may be awarded by the trial court, or, if the claiming party appeals, by the trial and appellate courts. The court shall determine the amount in its discretion. . . . (C) Exceptions. Subrule (A) does not apply in the following circumstances: (1) The court may allow a party to proceed without furnishing security for costs if the party’s pleading states a legitimate claim and the party shows by affidavit that he or she is financially unable to furnish a security bond. Security should not be required unless there is a substantial reason for doing so. Farleigh, supra at 634. A “substantial reason” for requiring security may exist where there is a “tenuous legal theory of liability,” or — 332 — where there is good reason to believe that a party’s allegations are “groundless and unwarranted.” Hall v Harmony Hills Recreation, Inc, 186 Mich App 265, 270; 463 NW2d 254 (1990). If a party does not file a security bond as ordered, a court properly may dismiss that party’s claims. Id. at 273. Here, the trial court concluded that there was a substantial reason for requiring security. Third-party plaintiffs named as third-party defendants nearly everyone who ever sent materials to the whsl, but possessed no specific evidence linking any of them in particular to any specific hazardous waste. On the basis of the large number of third-party defendants and the lack of specific allegations or favorable evidence on third-party plaintiffs’ part, we cannot conclude that there was an abuse of discretion in the trial court’s requiring a security bond. We also cannot conclude that the amount of the bond was an abuse of discretion. The $500,000 bond requirement would only have provided slightly more than $1,000 of security for each third-party defendant. Third-party plaintiffs argue that, even if the bond requirement was proper, it should have been waived because of their financial inability to satisfy it. As noted above, a trial court may waive the bond requirement if (1) the party’s pleading states a legitimate claim, and (2) the party shows by affidavit financial inability to furnish a security bond. MCR 2.109(C)(1). We discussed the security bond requirement of, and the trial court’s exercise of discretion under, MCR 2.109 in Hall, supra. “If the trial court believes that a Rule 109 bond would be proper absent plaintiff’s poverty, he must then assess the — 333 — indigent plaintiff’s financial ability to post bond. In this regard, the rule attempts to balance the right of a poor plaintiff to seek justice with the need of a defendant to have an opportunity for security. In our view, the rule establishes a strong preference for waiver of the bond where the indigent plaintiff’s pleadings show a ‘meritorious claim’— i.e., a legitimate cause of action. In cases where the indigent plaintiff’s pleadings show a tenuous legal theory, the plaintiff’s interest in free access to the courts becomes less significant when weighed against the defendant’s greater need for security. In short, the fulcrum of the rule’s balance is the legitimacy of the indigent plaintiff’s theory of liability. “This is not to say that legitimacy of the claim will always be determinative. The rule clearly allows for sound trial court discretion. We can imagine few cases, however, where a discreet trial court will require an indigent plaintiff, pleading a valid theory of liability, to post security.” [Hall, supra at 271-272, quoting Gaffier v St Johns Hosp, 68 Mich App 474, 478; 243 NW2d 20 (1976).] In determining the legitimacy of a claim, a trial court is not strictly limited to considering the plaintiffs legal theory, but may also consider the likelihood of success on that theory. Farleigh, supra at 634-636. A trial court’s determinations regarding the legitimacy of the claims and a party’s financial ability to post a bond are findings of fact that are reviewed only for clear error. Hall, supra at 271. Here, the trial court expressly found that third-party plaintiffs failed to demonstrate the legitimacy of their claims. On the basis of the record before us, we cannot conclude that this finding was clearly erroneous. Third-party plaintiffs did not offer any specific evidence to support their allegation that any particular third-party defendants contributed hazardous waste to the WHSL. Instead, they argued that they did not need such evidence. They argued that an expert — 334 — could testify regarding the type of waste usually generated by certain types of businesses and the hazardous substances usually contained therein. They claim that this testimony could serve as proof that a party actually contributed hazardous waste to the landfill. We find this logic unpersuasive. Accepting such a rule would effectively allow third-party plaintiffs, through the use of expert testimony and speculation, to shift the burden of proof, forcing third-party defendants to prove that they did not contribute any hazardous waste to the landfill. The trial court also addressed third-party plaintiffs’ ability to post a bond. The court apparently concluded that the affidavit asserting Oakland Disposal’s insolvency was insufficient to establish their inability to post a $500,000 bond: “[I]t is questionable whether the corporation itself is without the means to post a bond or seeks to gather funds for the state in order to prevent potential piercing of the corporate veil.” Again, we cannot conclude that this finding was clearly erroneous. The trial court had expressed concern throughout the litigation that third-party plaintiffs were sham corporations. Indeed, there was evidence that third-party plaintiffs’ assets had been mishandled. We believe that the trial court properly considered this evidence when determining whether they were able to post a bond. Under these circumstances, the trial court’s determination that third-party plaintiffs failed to establish their inability to post a bond was not clearly erroneous. Deferring to the trial court’s findings on these factual issues, we conclude that the trial court properly considered the legitimacy of third-party plaintiffs’ claims and balanced their apparent inability to post a — 335 — bond against third-party defendants’ need for security. Third-party plaintiffs presented nonspecific, tenuous claims against an extremely large number of third-party defendants who demonstrated a great need for security in light of the possibility of protracted litigation that might well result in dismissal after lengthy and expensive discovery. Thus, we conclude that the trial court’s decision to require a $500,000 bond was not an abuse of discretion. Another important factor contributing to our holding is that the third-party complaint was dismissed without prejudice. Because of this, if third-party plaintiffs were to discover, during the course of their proceedings with the Attorney General or otherwise, facts or evidence that could lead to more specific allegations against one or more third-party defendants, third-party plaintiffs would be able to seek contribution at a later date; MCL 324.20129(3); MSA 13A.20129(3) provides that contribution may be sought “during or following a civil action” brought by the Attorney General under the act. Taking all the circumstances of the matter into consideration, we simply cannot say that the trial court abused its discretion in requiring the security bond and dismissing the complaint for failure to post it. Affirmed.