Terlecki v. Stewart

• Decision Date: 22 April 2008
• Docket Number: Docket No. 272541.
• Citation: 754 N.W.2d 899,278 Mich. App. 644
• Parties: Lawrence TERLECKI and Margaret Terlecki, Plaintiffs-Appellees, v. Randy STEWART and Great Lakes Marine Construction, Inc., Defendants, and Silver Lake Property Association of Indian River, Mark W. Stephens, Robert Nikolas, and Mary Doe, Defendant-Appellants.
• Court: Court of Appeal of Michigan — District of US

754 N.W.2d 899

278 Mich. App. 644

Lawrence TERLECKI and Margaret Terlecki, Plaintiffs-Appellees, v. Randy STEWART and Great Lakes Marine Construction, Inc., Defendants, and Silver Lake Property Association of Indian River, Mark W. Stephens, Robert Nikolas, and Mary Doe, Defendant-Appellants.

Docket No. 272541.

Court of Appeals of Michigan.

Submitted February 5, 2008, at Lansing.

Decided April 22, 2008, at 9:10 a.m.

Daniel Loznak, Cheboygan, for Lawrence and Margaret Terlecki.

Cardelli, Lanfear & Buikema, P.C., by Anthony F. Caffrey III, Grand Rapids, for the Silver Lake Property Association of Indian River and others.

Before MARKEY, P.J., and METER and MURRAY, JJ.

PER CURIAM.

Defendants appeal by leave granted the trial court's denial of their motion for summary disposition of plaintiffs' claims of negligence, negligence per se, nuisance, trespass, and conspiracy.¹ The essence of plaintiffs' complaint is that defendants' actions have caused Silver Lake in Cheboygan County to rise, flooding plaintiffs' low-lying forested property. Defendants contend that plaintiffs' claims are time-barred because the alleged acts that resulted in the flooding occurred more than three years before plaintiffs filed this lawsuit on October 10, 2005. We conclude that the plain text of MCL 600.5805(10) and MCL 600.5827 bars plaintiffs' claim for money damages under any of plaintiffs' liability theories. However, the trial court properly determined that a claim for equitable relief to enforce a flowage easement is subject to the 15-year period set forth in MCL 600.5801(4). Nevertheless, the trial court should have granted defendant's motion for summary disposition because plaintiff had not properly pleaded such a claim. In sum, the trial court should have dismissed plaintiffs' claims for money damages as timed-barred by the statute of limitations, leaving no viable cause of action to support plaintiffs claim for equitable relief. Consequently, we reverse and remand without prejudice to plaintiffs' ability to file in the trial court a motion to amend their complaint. MCR 2.116(I)(5).

I. Summary of Facts and Proceedings

The facts relevant to this appeal are not in dispute. In 1997, defendants—with the permission of the Department of Environmental Quality (DEQ)—replaced with a concrete spillway an existing wooden spillway connecting Silver Lake to the Indian River. Plaintiffs allege that the DEQ permit required the replacement spillway to be the same elevation as the old wooden spillway but defendants improperly constructed the new concrete spillway 7.32 inches higher than the old one. Also, plaintiffs allege that sometime in 1998 the Lake Association caused a 2-by 6-inch board to be placed across the spillway, further elevating the lake. In addition, plaintiffs allege that sometime before November 2001, defendants partially capped a 4-inch PVC pipe running through a culvert, which had also allowed water to drain from Silver Lake into the river. Plaintiffs discovered the cap and removed it in November 2001.²

Plaintiffs assert that the effect of defendants' actions was to raise the water level of Silver Lake, causing water from the lake to flood plaintiffs' low-lying wooded property. Plaintiffs contend that they did not immediately appreciate what was happening because it was not observable. Although plaintiffs noticed some trees on their wooded wetland began dying in 2001, they did not realize that an elevated lake level was flooding their land or that this was injuring the trees. Plaintiffs allege that they only discovered the elevated spillway after having the area surveyed on April 12, 2005. Plaintiffs filed this action on October 10, 2005, seeking an injunction requiring defendants to return the spillway to its previous level and damages for injury to the trees.

The trial court denied defendants' motion for summary disposition that contended plaintiffs' claims were time-barred, stating in pertinent part:

Cameron[³] states that the "right of flowage is an easement that generally can be acquired only by prescription (if water flows over fifteen years over upland property either constantly or with sufficient intermittent frequency) or by a written instrument such as a deed. Beaverton Power Company v. Wolverine Power Company, 245 Mich. 541, 546, 222 N.W. 703 (1929)".

[A]ssuming the water level was improperly elevated in 1997 causing water to be diverted to Plaintiffs' property in 2001 after the culvert was capped, Plaintiffs' complaint is not time barred. In order to be time barred, the Defendants would have had to acquire a prescriptive easement permitting them to flood Plaintiffs' property by having conducted such activity for fifteen continuous years.

If indeed plaintiffs' claims are true, this is an ongoing wrongful act injuring Plaintiffs' property rights.

Defendants moved for reconsideration, which the trial court denied. For the purpose of deciding the motion, the trial court assumed that defendants committed wrongful acts in 1997 and 2001 when they raised the lake level and caused water to improperly encroach on plaintiffs' property. The court opined that this "wrongful impoundment" on plaintiffs' property was ongoing and that defendants had no easement or other legal right to divert water onto plaintiffs' property. In denying reconsideration, the trial court stated:

Plaintiff [sic] is permitted under law to bring an action to require this wrongful impoundment of water to cease and desist as the Defendants have no legal right for this activity. If the Defendants had been engaged in this conduct for 15 years prior to the litigation, then they might have acquired a prescriptive easement which would have given them a right to continue this activity. They did not and Plaintiff is entitled to challenge its contrivance.

The trial court left unresolved how far back plaintiffs could claim damages.

II. Standard of Review

This Court reviews de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7). Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 386, 738 N.W.2d 664 (2007). Summary disposition is proper when a claim is barred by the statute of limitations. Waltz v. Wyse, 469 Mich. 642, 647, 677 N.W.2d 813 (2004). When addressing a C(7) motion, the trial court must accept as true the allegations of the complaint unless contradicted by the parties' documentary submissions. Patterson v. Kleiman, 447 Mich. 429, 434 n. 6, 526 N.W.2d 879 (1994). When the material facts are not disputed, this Court reviews de novo as a question of law whether a claim is barred by the statute of limitations. Trentadue, supra at 386, 738 N.W.2d 664. The interpretation of statutes also requires review de novo. Id.

III. Analysis

A. Money Damages

Defendants argue that plaintiffs filed an action asserting claims of negligence, negligence per se, nuisance, trespass, and conspiracy, not an action to quiet title to property. Therefore, defendants argue, the trial court erred by applying the 15-year limitations period of MCL 600.5801(4) to plaintiffs' claims. Defendants argue that the proper statute of limitations is MCL 600.5805(10): "The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property." Defendants principally rely on Horvath v. Delida, 213 Mich.App. 620, 540 N.W.2d 760 (1995), which applied the three-year statutory period of limitations to claims of negligence, trespass, and nuisance flooding injury to property. Defendants further argue that plaintiffs' civil conspiracy claim takes on the limitations period of the underlying wrongful act.

On appeal, plaintiffs argue that defendants concealed the fact that the replacement spillway was higher than the old spillway, contrary to the permit the DEQ issued, and that this Court therefore should apply the discovery rule by which a claim does not accrue until the plaintiff discovers or should have discovered the alleged wrongful act. Johnson v. Caldwell, 371 Mich. 368, 379, 123 N.W.2d 785 (1963).⁴ Plaintiffs also distinguish Horvath on the ground that in Horvath the water table changed by two to five feet but here the lake level rose only 7½ inches. Further, plaintiffs assert that the trial court properly invoked the continuous-tort doctrine. Specifically, plaintiffs contend the flooding caused by the raised spillway constitutes continuing torts of trespass and nuisance, citing Defnet v. Detroit, 327 Mich. 254, 41 N.W.2d 539 (1950),⁵ DiFronzo v. Village of Port Sanilac, 166 Mich.App. 148, 419 N.W.2d 756 (1988),⁶ and Hodgeson v. Genesee Co. Drain Comm'r, 52 Mich. App. 411, 217 N.W.2d 395 (1974).⁷

On the other hand, defendants argue that the trial court erred by applying the continuing-wrongful-acts doctrine to deny defendants' motion for summary disposition. They contend that the trial court confused the fact of alleged finite wrongful acts (in 1997 and 2001) with the continuing harmful effects of those acts. Defendants point to Horvath, in which the plaintiffs alleged that the defendants' single wrongful act (dredging) resulted in continuing flooding to their property. The Horvath Court held that the plaintiffs "misapprehend the crux of the doctrine: a continuing wrong is established by continual tortious acts, not by continual harmful effects from an original, completed act." Horvath, supra at 627, 540 N.W.2d 760 (emphasis in original). Moreover, defendants argue that the continuing-wrongful-acts doctrine no longer applies in Michigan in light of Garg v. Macomb Co. Community Mental Health Services, 472 Mich. 263, 696 N.W.2d 646 (2005), amended 473 Mich. 1205, 699 N.W.2d 697 (2005).⁸

We conclude that plaintiffs' claim for money damages for injury to plaintiffs' property is a claim for injury to property within the plain text of MCL 600.5805(10), whether the claim is for the death of trees or for the submersion of the land....