Jackson County Hog Producers v. Consumers Power Co.

• Decision Date: 12 February 1999
• Docket Number: Docket No. 197916
• Citation: 592 N.W.2d 112,234 Mich.App. 72
• Parties: JACKSON COUNTY HOG PRODUCERS, Plaintiff-Appellant/Cross-Appellee, and Fieger, Fieger, & Schwartz, Appellant, v. CONSUMERS POWER COMPANY, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 112

592 N.W.2d 112

234 Mich.App. 72

JACKSON COUNTY HOG PRODUCERS, Plaintiff-Appellant/Cross-Appellee and Fieger, Fieger, & Schwartz, Appellant, v. CONSUMERS POWER COMPANY, Defendant-Appellee/Cross-Appellant.

Docket No. 197916.

Court of Appeals of Michigan.

Submitted Dec. 15, 1998, at Detroit.

Decided Feb. 12, 1999, at 9:15 a.m.

Released for Publication May 5, 1999.

Marcoux, Allen, Abbott, Schomer & Bower, P.C. (by John H. Schomer ), Jackson, for the plaintiffs.

Fieger, Fieger & Schwartz, P.C. (by Geoffrey N. Fieger ), Southfield, for Fieger, Fieger & Schwartz, P.C.

Dykema Gossett PLLC (by Robert J. Franzinger, Margaret A. Costello, and Kathleen McCree Lewis ), Detroit, for the defendant.

Before: YOUNG, JR., P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

Plaintiffs, Jackson County Hog Producers, and SLS 1984-1, SLS 1985-1, SLS 1985-2, and SLS 1985-3, limited partnerships involved in hog production, appeal as of right from the trial court's grant of summary disposition in favor of defendant and the court's imposition of discovery sanctions against them. Defendant, Consumers Power Company, cross appeals as of right from the trial court's imposition of discovery sanctions against it and the trial court's decision to award it discovery sanctions not to exceed $20,000. The law firm of Fieger, Fieger & Schwartz, plaintiffs' trial attorneys, contest the trial court's order imposing discovery sanctions against it. We affirm.

Plaintiffs alleged in its multicount complaint that defendant was liable for damages on the basis of negligence, violations of the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq.; MSA 19.418(1) et seq., breach of express and implied warranties, trespass and nuisance, breach of contract, and fraud, as a result of "stray voltage" that invaded plaintiffs' properties, causing damage to plaintiffs' hog production operation.

Plaintiffs first argue that the trial court erred in dismissing the negligence portions of their complaint pursuant to MCR 2.116(C)(7) on the ground that the claim was barred by the applicable statute of limitations. The question whether a claim is within the period of limitation is one of law for the court to decide and is therefore reviewed de novo. Solowy v. Oakwood Hosp. Corp., 454 Mich. 214, 216, 561 N.W.2d 843 (1997); Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991). When reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must accept as true a plaintiff's well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff's favor. Guerra v. Garratt, 222 Mich.App. 285, 289, 564 N.W.2d 121 (1997). If no facts are in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a plaintiff's claim is barred by the statute of limitations is a question for the court as a matter of law. Id. However, if a material factual dispute exists in such a manner that factual development could provide a basis for recovery, summary disposition is inappropriate. Id.

Plaintiffs concede that the applicable statute of limitations is three years from the date the cause of action accrues, pursuant to M.C.L. § 600.5805(8); MSA 27A.5805(8). Plaintiffs contend, however, that there were questions of fact respecting whether they knew or should have known of the potential for a cause of action against defendant more than three years before the expiration of the limitation period. Alternatively, plaintiffs argue that the trial court erred in not invoking the "continuing-wrongful-acts doctrine" to find that the claim was not barred.

A plaintiff's cause of action accrues when all the elements have occurred and can be alleged in a complaint. Horvath v. Delida, 213 Mich.App. 620, 624, 540 N.W.2d 760 (1995). However, if the discovery rule applies, a claim does not accrue for the purpose of the running of the limitation period until a plaintiff discovers, or through the exercise of reasonable diligence should have discovered (1) an injury and (2) the causal connection between the injury and a defendant's breach of duty. Lemmerman v. Fealk, 449 Mich. 56, 66, 534 N.W.2d 695 (1995). It is not necessary that a plaintiff be able to prove each element of the cause of action before the period of limitation begins to run. Moll v. Abbott Laboratories, 444 Mich. 1, 21, 24, 506 N.W.2d 816 (1993). The test to be applied in determining when a cause of action accrued is an objective one, based on objective facts, and not on what a particular plaintiff subjectively believed. Id. at 18, 506 N.W.2d 816. Application of the test is a matter of law for the court in the absence of any issue of material fact. Id. at 26, 506 N.W.2d 816.

In this case, it is undisputed that if defendant were negligent in allowing stray voltage to damage plaintiffs' property, the stray voltage problem existed for more than three years preceding the October 1993 filing of plaintiffs' complaint. Therefore, assuming, without deciding, that the discovery rule applies in this case, we must decide whether plaintiffs knew or should have known, more than three years before filing their complaint, that they had suffered an injury and the possible causal connection between their injury and defendant's breach. ¹

In support of its motion for summary disposition of the negligence claim, defendant submitted the deposition of David Wade, who was employed by plaintiffs in a managerial capacity from June 1980 until May 1988. Although Wade could not recall exact dates, he testified that during his employment with plaintiffs, he personally observed the effects of stray voltage at plaintiffs' facilities. He further testified that "numerous" other employees also witnessed the effects of stray voltage. According to Wade, steps were taken sometime before May 1988 to alleviate the problem. These steps included "grounding," which entailed attaching copper wire to affected equipment and then securing the wire to the ceiling with an aluminum screw. Even after taking these steps, however, plaintiffs continued to suffer production problems. Notably, Wade specifically recalled the use of the term "stray voltage" to describe the problem at plaintiffs' facilities. Wade also testified that there was an understanding among plaintiffs' employees that the stray voltage could be affecting the water intake of the animals.

Plaintiffs' awareness of a potential stray voltage problem before October 1990 was also evidenced by the deposition testimony of plaintiffs' employees David McMurtrie, Michael Shelters, Bob Schaefer, and Dean Hoefer. Each of these employees gave testimony that was similar to and confirmed the testimony of David Wade. Further, defendant also presented evidence that it sent to each of plaintiffs' facilities a brochure entitled "Stray Voltage on the Farm" in 1986 and every year thereafter until 1992, although plaintiffs denied ever receiving the literature.

Plaintiffs respond that they had no reason to attribute the health problems of their animals to stray voltage. In contesting defendant's motion for summary disposition, plaintiffs argued that defendant misconstrued the deposition testimony of the above-mentioned witnesses. According to plaintiffs, although the testimony of the witnesses revealed that before October 1990, employees of plaintiffs had used the term "stray voltage" loosely to describe various electrical problems experienced at the facilities, none of the witnesses believed, or had reason to believe, that plaintiffs' production problems were being caused by stray voltage. In fact, plaintiffs presented the deposition testimony of their veterinarian, Dr. Duane Trupiano, in which he stated that he did not attribute the poor health condition of the animals to stray voltage.

However, viewing the evidence presented by the parties in the light most favorable to plaintiffs, we conclude that before October 1990 plaintiffs were aware, or at least should have been aware, that they were suffering damages as a result of stray voltage. Although plaintiffs might not have understood with any degree of specificity the technical aspects of stray voltage, the evidence reveals that they did know, or should have known, that electricity supplied by defendant was potentially harming their animals and, in turn, causing their production to suffer. Further, even if plaintiffs believed that the steps that they had taken to alleviate the problem were successful, the continued production problems should have alerted plaintiffs to the possibility that the electrical problem was not entirely corrected. Accordingly, the trial court did not err in concluding that sometime before October 1990, plaintiffs knew, or should have known, that stray voltage was causing them injury.

Alternatively, plaintiffs argue that the trial court erred in not invoking the continuing-wrongful-acts doctrine in order to avoid the applicability of the statute of limitations. 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 run until the wrong is abated; therefore, a separate cause of action can accrue each day that defendant's tortious conduct continues." Horvath, supra at 626, 540 N.W.2d 760. The essence of plaintiffs' claim is that stray voltage has persisted for years and continued to plague the facilities in question even at the time plaintiffs drafted their brief for this appeal, thus presenting a perfect case for application of the continuing-wrongful-acts doctrine. We disagree.

Like the plaintiffs in Horvath, plaintiffs in this case misapprehend the essence of the continuing-wrongful-acts doctrine. In Horvath, the plaintiffs filed suit against the defendants in 1992 for escalating flooding damage allegedly caused by the defendants' dredging of a lake in 1982. In rejecting the plaintiffs' attempt to...