On February 8, 2022, the Michigan Supreme Court published its opinion in the case of Twp of Fraser v Haney, Docket No. 160991, ______NW2d ______, 2022 WL 388013 (Mich. Feb. 8, 2022) and clearly defined the statute of limitations for a violation of a zoning ordinance. The Haney decision, which was decided shortly after the unreported decision of Sunrise Resort Ass’n, Inc v Cheboygan Cty Rd Comm’n, unpublished per curiam opinion of the Court of Appeals, issued December 2, 2021 (Docket No. 354540), discussed the continuing-wrongs doctrine in Michigan and made a significant clarification as to its application to claims based on zoning violations that may have started outside the statute of limitations period but that continued within that period.
Statute of Limitations in Michigan
Statutes of limitations provide an outside date by which a lawsuit must be filed to be considered timely. “Statutes of limitations are important to the administration of justice by ‘preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’” Cowles v Bank W, 476 Mich 1, 21; 719 NW2d 94, 105 (2006), citing American Pipe & Constr Co v. Utah, 414 US. 538, 554, 94 SCt. 756, 38 LEd2d 713 (1974). “The primary purposes behind statutes of limitations can be summarized as (1) encouraging the plaintiffs to diligently pursue claims and (2) protecting the defendants from having to defend against stale and fraudulent claims.” Wright v Rinaldo, 279 Mich App 526, 533; 761 NW2d 114, 118 (2008), citing Lemmerman v Fealk, 449 Mich 56, 65; 534 NW2d 695 (1995).
The date of accrual as to when the statute of limitations starts to run is not always straightforward, and, in most cases, depends on the type of action that caused the purported injury or damage. In Michigan, a cause of action generally “accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.” Connelly v. Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972); see also Moll v. Abbott Labs, 444 Mich 1, 15-16; 506 NW2d 816 (1993). Importantly, although later damages may accrue, these later damages do not give rise to a new cause of action, and the statute of limitations does not start again each time additional damage is incurred. See Stephens v Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995).
The Stephens case involves an automobile accident. There, the plaintiff filed her lawsuit more than 3 years after the accident occurred. In response to the defendant’s argument that the claim was time-barred, the plaintiff attempted to argue that she had misjudged the severity of her injury, and therefore, the claim did not arise at the time of the accident. This claim was rejected by the court because the “plaintiff knew or should have known from the day of the accident that a possible cause of action existed for a neck injury resulting from the accident.” Stephens, 449 Mich 531, at 535.
The Continuing Wrongs Doctrine
Although the court in the Stephens case rejected a claim based on a later discovery of a more severe injury, it did not discuss the situation where a party’s conduct may have started outside the statute of limitations period but continued within the statute of limitations period. In those situations, many parties will attempt to rely on the continuing wrongs doctrine to state that the entire claim is barred by the statute of limitations. A good example of this is the situation where a party is creating a nuisance on another’s property from water run-off, but that nuisance has been ongoing for longer than the three-year statute of limitations for property damage under MCL 600.5805. This example is similar to that decided in the Sunrise Resort Ass’n case discussed below.
The continuing wrongs doctrine was invalidated in Michigan, especially as it relates to trespass and nuisance cases, in decisions like Marilyn Froling Rev Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 280; 769 NW2d 234 (2009), and even as to other claims such as employment discrimination, in cases like Garg v Macomb Cty Cmty Mental Health Servs, 472 Mich 263; 696 NW2d 646 (2005), opinion amended on denial of reh’g (July 18, 2005). Therefore, under the current state of Michigan law, if the claimed injuries all stem from one original event that occurred outside of the statute of limitations period, the fact that a party is damaged later will not revive an otherwise barred claim.
The Continuing Wrongs Doctrine
The fact that Michigan does not allow claims that fall outside the statute of limitations to be saved by the continuing wrongs doctrine does not end the analysis, however. For example, if there are distinct events that happen both inside and outside the statute of limitations, a claim may timely be asserted for the damages caused by the events that are within the appropriate limitations period. Two recent decisions outline this legal tenet.
In the Sunrise Resort Ass’n case, the plaintiffs, who owned property on West Burt Lake Road in Cheboygan County, asserted a claim against the Cheboygan County Road Commission due to overflow and backup of a storm water drainage system that diverted drainage through the plaintiffs’ properties to Burt Lake by a system of ditches and culverts. As the plaintiffs claimed, the drainage system was modified when a bicycle trail was constructed in 2013 and 2014 causing minor damage to the plaintiffs’ properties in 2015. At that time, the Road Commission was told about the issue and the possibility that more major damage could result. Then, in May of 2018, the plaintiffs did suffer significant damage when the drainage system overflowed and backed up. The lawsuit was filed in February of 2020, and sounded in a claim for monetary damages and injunctive relief to abate the ongoing trespass or nuisance. After the trial court granted summary disposition in favor of the Road Commission finding that all the claims were barred by the three-year statute of limitations for property damage in MCL 600.5805, the plaintiffs filed an appeal. The Court of Appeals reversed the trial court’s decision and held that, although any claim based on damage caused by the 2015 event was time-barred, the claim based on the 2018 event was an “independent ‘sewage disposal system event,’” and thus gave rise to a claim that was not time-barred.
In Haney, the Supreme Court specifically held that the continuing-wrongs doctrine as discussed in Garg is not applicable when the claim asserted is based on distinct actions that continued within the statutory period. In that case, and although the zoning violation at issue (keeping livestock on the property) started 10 years before the lawsuit was filed, the township sought an injunction to force current compliance with the zoning ordinance. The Court went on to hold that the action was timely brought under MCL 600.5813 (the general 6-year statute of limitations) because the complaint was filed within 6 years of the most recent violations of the zoning ordinance:
Defendants here are not free to continue committing zoning-ordinance violations simply because plaintiff did not bring an action against their first zoning violation. Whether Michigan recognizes the continuing-wrongs doctrine has no bearing on a plaintiff’s ability to bring an action for claims that accrued within the statutory period of limitations. Thus, Michigan’s abrogation of the doctrine is irrelevant to this case because plaintiff does not seek a remedy for violations outside the limitations period. Defendants violate the law as long as they keep hogs on their property, and plaintiff seeks to remedy only violations that occurred within the statutory period of limitations in the form of an injunction.
These two decisions highlight the misuse of the continuing wrongs doctrine concept by both practitioners and courts throughout Michigan. The purpose of the abolition of the doctrine was to preclude an allegedly injured party from tacking on damages caused by actions outside the statute of limitations period with damages caused by claims that are timely. Michigan law formerly stood for the proposition that the statute of limitations on a nuisance or trespass claim did not start to run until the trespass or nuisance was abated, and that allowed certain claims to be asserted potentially dozens of years after a party was damaged. However, and as clarified by the courts in Haney and Sunrise Resort Ass’n, the fact that the doctrine has been abolished should not be used as a sword to defeat otherwise timely claims simply because some bad acts occurred outside the statute of limitations period and the injured party chose not to file a lawsuit at that time.
The primary takeaway from both the Haney and Sunrise Resort Ass’n decisions is that the analysis as to whether a particular cause of action is barred by the statute of limitations is not limited to when the initial “wrong” took place. Under the analysis applied prior to these decisions, a party that is suffering damage due to new, or discreet, actions could be barred from asserting any claims whatsoever. Therefore, if a party is currently being harmed by another’s actions, such as a violation of a zoning ordinance, retaining a real estate attorney who can analyze the claim, and provide an opinion as to whether a cause of action can be asserted, is a must.
Adam Toosley is a member at Hirzel Law, PLC and focuses his practice on real estate litigation, zoning and land use, construction, and financial services litigation. Over the course of his career, he has represented property owners, landlords, condominium associations, lenders and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States. He is licensed in both Michigan and Illinois. He can be reached at (248) 480-8704 or at atoosley@hirzellaw.com.
