Traver Lakes Community Maintenance Ass'n v. Douglas Co., Docket No. 182054

• Decision Date: 27 June 1997
• Docket Number: Docket No. 182054
• Citation: 224 Mich.App. 335,568 N.W.2d 847
• Parties: TRAVER LAKES COMMUNITY MAINTENANCE ASSOCIATION, Plaintiff-Appellant, v. The DOUGLAS COMPANY, Windemere Apartments Limited Partnership, Windemere I Limited Partnership, and Burlington Construction, Defendants-Appellees, and City of Ann Arbor, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 847

568 N.W.2d 847

224 Mich.App. 335

TRAVER LAKES COMMUNITY MAINTENANCE ASSOCIATION, Plaintiff-Appellant, v. The DOUGLAS COMPANY, Windemere Apartments Limited Partnership, Windemere I Limited Partnership, and Burlington Construction, Defendants-Appellees and City of Ann Arbor, Defendant.

Docket No. 182054.

Court of Appeals of Michigan.

Submitted Oct. 1, 1996, at Detroit.

Decided June 27, 1997, at 9:00 a.m.

Released for Publication Oct. 1, 1997.

Hertz, Schram & Saretsky, P.C. by Steve J. Weiss and Miles D. Hart, Bloomfield Hills, for Traver Lakes Community Maintenance Ass'n.

Vandeveer Garzia, P.C. by Leonard A. Krzyzaniak, Jr., and Christine A. Fischer, Detroit, for Burlington Construction.

Plunkett & Cooney, P.C. by Christine D. Oldani, Robert H. Martin, and Brian McGorisk, Detroit, for Douglas Co.

Pedersen, Keenan, King, Waschsberg & Andrzejak by Daniel P. King, Farmington Hills, for Windemere I Ltd. Partnership.

Before HOLBROOK, P.J., and WHITE and LATREILLE ^* , JJ.

HOLBROOK, Presiding Judge.

In this case alleging negligence and trespass, plaintiff appeals by leave granted from a circuit court order granting summary disposition to defendants ¹ on the basis that plaintiff's claims were time-barred under the applicable statute of limitations, MCR 2.116(C)(7), and denying plaintiff's motion to amend to add a nuisance claim. We affirm in part, reverse in part, and remand for further proceedings.

Windemere I Limited Partnership owned and constructed the Windemere Apartment complex in Ann Arbor in the late 1980s. The Douglas Company was the general contractor and Burlington Construction was a subcontractor for the project. The complex was built near Traver Lakes, a residential community developed in the 1970s and comprised of apartments, townhouses, and common areas. A series of connected ponds provide for storm and ground water discharge from the Traver Lakes community and connect it with Ann Arbor's city storm water drainage and septic system. Plaintiff Traver Lakes Community Maintenance Association was formed to oversee and coordinate the upkeep and maintenance of the Traver Lakes community.

During and after construction of the Windemere Apartment complex, excessive amounts of silt and sediment flowed from the construction site into the Traver Lakes pond system, causing a build-up of sediment in the ponds and decreased water flow through the system. Plaintiff filed this lawsuit in September 1993, alleging that defendants had installed ineffective or insufficient erosion control measures in construction of the apartment complex and that it had expended approximately $200,000 to clean its pond system in 1992 and that this process would have to be repeated every five to ten years. Plaintiff's complaint alleged separate counts of negligence and trespass against defendants Windemere, Douglas, and Burlington. Defendant Windemere moved for summary disposition on the basis of its affirmative defense that the period of limitation had run. Defendants Douglas and Burlington joined in Windemere's motion. Plaintiff responded and also moved for leave to amend its complaint to add a count of nuisance.

The trial court granted defendants' motion for summary disposition and denied plaintiff's motion for leave to amend its complaint. The court held that the proposed amendment was untimely and that adding a nuisance count would be futile because no evidence had been produced to show that defendants exercised possession or control of the pond system. Plaintiff appeals.

Plaintiff first argues that summary disposition of its claim of ordinary negligence was granted improperly. When reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts as true the plaintiff's well-pleaded allegations and construes them in the plaintiff's favor. Huron Tool & Engineering Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 376-377, 532 N.W.2d 541 (1995). To determine whether a genuine issue of material fact exists, we look to the pleadings, affidavits, and other documentary evidence submitted by the parties. Where a material factual dispute exists such that factual development could provide a basis for recovery, summary disposition is inappropriate. Otherwise, where no material facts are in dispute, this Court may decide the question as a matter of law. Moll v. Abbott Laboratories, 444 Mich. 1, 26, 506 N.W.2d 816 (1993).

Here, plaintiff's claim of ordinary negligence accrued at the latest by September 1988, when plaintiff became aware that silt and sediment were coming from the Windemere Apartment project. Given that the claim accrued more than three years before plaintiff filed its complaint, plaintiff's negligence claim is time-barred. See M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8); M.C.L. § 600.5827; M.S.A. § 27A.5827. To avert this result, however, plaintiff argues that the continuing-wrongful-acts doctrine operates to toll the running of the period of limitation. We disagree. In Horvath v. Delida, 213 Mich.App. 620, 627, 540 N.W.2d 760 (1995), this Court held that the continuing-wrongful-acts doctrine is "established by continual tortious acts, not by continual harmful effects from an original, completed act." In that case, the plaintiffs' cause of action was based on the defendants' negligent dredging of an adjoining marshy lagoon; it was not based on claims of nuisance or trespass. Id. at 627, n. 2, 540 N.W.2d 760. Indeed, we expressly noted that Michigan courts have not recognized a cause of action for continuing negligence. Id. Here, plaintiff's complaint alleged that defendants' failure to install sufficient erosion control measures during construction constituted the "predicate negligent act" that has resulted in continuing harmful effects to plaintiff's pond system. As alleged, plaintiff's negligence claim does not come within the ambit of the continuing-wrongful-acts doctrine. Id. at 627-628, 540 N.W.2d 760. Accordingly, the trial court correctly held that plaintiff's negligence claim against defendant Windemere was time-barred. We therefore affirm the order granting summary disposition of this claim in favor of defendant Windemere.

With regard to plaintiff's negligence claim against defendants Douglas and Burlington the parties and the trial court also applied the three-year limitation period applicable to injuries to property. This was error. The applicable statute of limitation for claims of ordinary negligence against contractors, M.C.L. § 600.5839; M.S.A. § 27A.5839, ² provides for a six-year period of limitation. Smith v. Quality Constr. Co., 200 Mich.App. 297, 503 N.W.2d 753 (1993). Section 5839(1) has been construed as both a statute of limitation and a statute of repose. O'Brien v. Hazelet & Erdal, 410 Mich. 1, 15, 299 N.W.2d 336 (1980); Smith, supra at 300-301, 503 N.W.2d 753.

For ordinary negligence actions [against contractors] that accrue within six years from the occupancy, use, or acceptance of the completed improvement, the statute prescribes the time within which such actions may be brought and, thus, acts as a period of limitation. When more than six years has elapsed from the date of occupancy, use, or acceptance before an injury is sustained, the statute is one of repose that prevents a cause of action from ever accruing. Where the injury occurs after the passage of the applicable time period, the injured party "literally has no cause of action. The harm that has been done is damnum absque injuria--a wrong for which the law affords no redress." [Id. at 301, 503 N.W.2d 753 (citations omitted).]

Here, it is undisputed that plaintiff filed its complaint within six years from the occupancy, use, or acceptance of the completed construction project. Accordingly, the trial court erred in granting summary disposition of plaintiff's negligence claim against defendants Douglas and Burlington on the basis that the period of limitation had run.

In addition to its negligence claim, plaintiff also had alleged a trespass claim and, in the face of defendants' motions for summary disposition alleging that the period of limitation had run, plaintiff had moved for leave to file an amended complaint, adding a count of nuisance. Although the trial court's order did not specifically address plaintiff's trespass claim, it is clear that the court's grant of summary disposition included this claim. The trial court also denied plaintiff's motion to amend on grounds of undue delay and futility. On appeal, we conclude that issues of fact remain regarding the viability of plaintiff's trespass claim and that the court's stated reasons for denying the motion to amend constituted an abuse of discretion. Thus, we reverse and remand for further proceedings regarding these claims.

First, with respect to plaintiff's motion for leave to amend to add a count of nuisance, we agree with plaintiff that the trial court abused its discretion in finding that plaintiff had acted with undue delay. A court should freely grant leave to amend a complaint when justice so requires. MCR 2.118(A)(2). The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result. Amendment is generally a matter of right rather than grace, and ordinarily should be denied only for particularized reasons, such as undue prejudice to the opposing party, undue delay, bad faith or dilatory motive on the movant's part, or where the amendment would be futile. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 659, 213 N.W.2d 134 (1973). Delay without more, such as undue prejudice, does not mandate the denial of a motion to amend. Davis v Chrysler Corp., 151 Mich.App. 463, 473-474, 391 N.W.2d 376 (1986). The prejudice justifying the denial of a motion to amend is not prejudice arising from the amendment's effect on the result of trial or loss of a meritorious claim or defense, but is, rather, prejudice preventing a party from having...