Attorney General v. Harkins

• Decision Date: 17 July 2003
• Docket Number: No. 227720, No. 232934.
• Parties: ATTORNEY GENERAL and Department of Environmental Quality, Plaintiffs-Appellants, v. Donald L. HARKINS, Defendant-Appellee, Attorney General and Department Of Environmental Quality, Plaintiffs-Appellees, v. Donald L. Harkins, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

669 N.W.2d 296

257 Mich. App. 564

ATTORNEY GENERAL and Department of Environmental Quality, Plaintiffs-Appellants, v. Donald L. HARKINS, Defendant-Appellee, Attorney General and Department Of Environmental Quality, Plaintiffs-Appellees, v. Donald L. Harkins, Defendant-Appellant.

Nos. 227720, 232934.

Court of Appeals of Michigan.

Submitted January 15, 2003, at Detroit.

Decided July 17, 2003, at 9:00 a.m.

Released for Publication September 18, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Elaine D. Fischhoff, for the plaintiff's.

William J. Reisdorf, Troy, for the defendant.

Before ZAHRA, P.J., and MURRAY and FORT HOOD, JJ.

ZAHRA, P.J.

In Docket No. 227720, plaintiff's, the Michigan Attorney General and the Michigan Department of Environmental Quality (collectively referred to as plaintiff), appeal as of right from an order granting summary disposition to defendant, Donald J. Harkins, which dismissed plaintiff's equitable action to restore wetlands that were altered in violation of a permit issued under Part 303 (Wetland Protection) of the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.30301 et seq. In Docket No. 232934, defendant appeals as of right from the trial court's order denying his request for attorney fees and costs for defending against plaintiff's allegedly frivolous action. These cases were consolidated for purposes of appeal. We conclude that plaintiff's action is barred by the six-year statute of limitations found in M.C.L. § 600.5813.¹ We further conclude that the trial court did not clearly err in finding that plaintiff's action was not frivolous. We affirm.

I. Facts and Procedure

In 1987, defendant applied for a permit to fill certain portions of his lakefront lot, which measured approximately one-tenth of an acre, for the creation of a beachfront. Plaintiff denied defendant's original permit application, and defendant appealed that decision. While his appeal was pending, defendant accepted plaintiff's offer for a more limited permit, which was issued on March 15, 1988 (the modified permit). Defendant asserts that he completed his work on the property in 1988. On May 9, 1990, a hearing referee affirmed plaintiff's denial of defendant's original permit application. That decision was affirmed by this Court in Harkins v. Dep't of Natural Resources, 206 Mich.App. 317, 520 N.W.2d 653 (1994), which noted that a modified permit had been issued and concluded that no compensable "taking" had occurred. The Supreme Court denied leave to appeal.

On August 28, 1990, plaintiff investigateda report that defendant had developed his property in violation of the modified permit. Defendant met with John Jurcich of the Department of Natural Resources, who concluded in his report that the work appeared to be within the guidelines of the modified permit. Despite Jurich's conclusion, on August 8, 1991, plaintiff issued a cease and desist order against defendant, alleging that defendant's work on his property did not conform with what was authorized by the modified permit. The order prompted a criminal prosecution against defendant under the provisions of the former Wetland Protection Act, M.C.L. § 28.714, and the Inland Lakes and Streams Act, M.C.L. § 28.1951 et seq. On April 4, 1992, a district judge dismissed the criminal action. Plaintiff did not appeal this dismissal.

On March 28, 1996, plaintiff filed this action seeking an injunction requiring defendant to restore the wetlands and lake bottom and alleging that defendant filled or dredged the wetlands in violation of the modified permit. Plaintiff also requested civil fines. Defendant eventually moved for summary disposition.² On April 12, 2000, the trial court issued an opinion and order granting defendant summary disposition of plaintiff's action under MCR 2.116(C)(10) (no genuine issue of material fact) and MCR 2.116(C)(7) (statute of limitations), and dismissing plaintiff's complaint. Defendant subsequently filed a motion for attorney fees and costs, claiming that plaintiff's action was vexatious, lacked a factual basis, and was filed with the intent to harass. Following a hearing on October 26, 2000, the trial court denied defendant's motion.

II. Analysis

A. Docket No. 227720: Statute of Limitations

The trial court held that the six-year period of limitations set forth in M.C.L. § 600.5813 barred plaintiff's injunctive action to enforce the permit and restore the wetlands in question. Specifically, the trial court observed that defendant's alteration of the wetlands was completed in 1988. This action was commenced eight years after the wetlands were altered. The trial court concluded that plaintiff's equitable action was therefore barred by the six-year period of limitations. MCL 600.5813.

The applicability of a statute of limitations is a question of law that we review de novo. Ins. Comm'r v. Aageson Thibo Agency, 226 Mich.App. 336, 340-341, 573 N.W.2d 637 (1997). Statutes of limitations are procedural devices intended to promote judicial economy and protect the rights of defendants by precluding litigation of stale claims. Stephens v. Dixon, 449 Mich. 531, 534, 536 N.W.2d 755 (1995). Michigan courts have not addressed whether § 5813 applies to equitable actions brought under the NREPA.

Defendant argues on appeal that the six-year limitations period contained in § 5813 bars plaintiff's claim. Judicial interpretation of a statute requires that effect be given to the plain meaning of the words used by the Legislature in the statute under review. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 107, 649 N.W.2d 383 (2002). If the language of the statute is clear, then the statute will be enforced as written. Id. "Unless otherwise defined in the statute, or understood to have a technical or peculiar meaning in the law, every word or phrase of a statute will be given its plain and ordinary meaning." Id.

Section 5813 provides, "[a]ll other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes."³ Black's Law Dictionary (6th ed.) defines "personal action" as follows: "In civil law, an action in personam seeks to enforce an obligation imposed on the defendant by his contract or delict; that is, it is the contention that he is bound to transfer some dominion or to perform some service or to repair some loss." See also 1 Am Jur 2d, Actions, § 32, p. 744 ("Personal actions are those brought for the recovery of personal property, for the enforcement of a contract or to recover for its breach, or for the recovery of damages for an injury to the person or property.")

Here, plaintiff brought a civil action against defendant, an individual who allegedly failed to comply with portions of Part 303 of the NREPA. Plaintiff's injunctive action to require defendant to restore the wetland comes within the meaning of a "personal action" as defined in § 5813, because it seeks to "repair some loss." Actions brought by the Attorney General on behalf of government departments are deemed personal actions. See Great Lakes Gas Transmission Co. v. State Treasurer, 140 Mich.App. 635, 650, 364 N.W.2d 773 (1985).

Further, as both parties acknowledge, there is no applicable statute of limitations set forth in the NREPA. While M.C.L. § 324.30316 provides for the commencement of a civil action by the Attorney General to seek "appropriate relief, including injunctive relief" for permit violations, it does not state a period of limitations for bringing such actions. The Revised Judicature Act specifies that § 5813 is the general statute of limitations applying to "[a]ll other personal actions ... unless a different period is stated in the statutes." This Court has held that "a civil cause of action arising from a statutory violation is subject to the six-year limitation period found in § 5813, if the statute itself does not provide a limitation period." DiPonio Constr. Co. v. Rosati Masonry Co., Inc., 246 Mich.App. 43, 56, 631 N.W.2d 59 (2001). There being no period of limitations expressly applicable to actions brought under the NREPA, the general limitation provisions of § 5813 apply.⁴ Plaintiff, citing Taylor v. SS Kresge Co., 332 Mich. 65, 75, 50 N.W.2d 851 (1952), argues that statutes of limitations are not applicable to equitable actions such as the claim asserted by plaintiff in this case. Taylor does indeed hold that statutes of limitations do not apply to equitable actions. However, after the Supreme Court's decision in Taylor, the Legislature enacted M.C.L. § 600.5815, which provides that "[t]he prescribed period of limitations shall apply equally to all actions whether equitable or legal relief is sought...." Thus, the Legislature's express statement that statutes of limitations apply to equitable actions essentially rendered moot that portion of the Supreme Court's decision in Taylor.

Having determined that the six-year period of limitations applies to this cause of action, we must next determine when the claim accrued. The accrual provision in M.C.L. § 600.5827 provides that "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." Here, plaintiff granted defendant the modified permit on March 15, 1988. Defendant completed his work on the property in 1988. Plaintiff filed the instant action on March 28, 1996. Plaintiff alleges that defendant violated the modified permit issued to him on March 15, 1988. Consequently, more than six years passed between the time the purported violation occurred in 1988 and the time the claim was filed on March 28, 1996.

We find unpersuasive plaintiff's claim that the limitations period was tolled by defendant's continuing wrongful acts. "The continuing-wrongful-acts doctrine states that `[w]here a defendant's wrongful acts are of a continuing nature, the period of limitation will not...