Twp. of Fraser v. Haney

• Decision Date: 20 December 2018
• Docket Number: No. 337842,337842
• Citation: 327 Mich.App. 1,932 N.W.2d 239
• Parties: TOWNSHIP OF FRASER, Plaintiff-Appellee, v. Harvey HANEY and Ruth Ann Haney, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 1

932 N.W.2d 239

TOWNSHIP OF FRASER, Plaintiff-Appellee,

v.Harvey HANEY and Ruth Ann Haney, Defendants-Appellants.

No. 337842

Court of Appeals of Michigan.

Submitted December 12, 2018, at Lansing

Decided December 20, 2018

Approved for Publication January 17, 2019, 9:00 a.m.

Birchler, Fitzhugh, Purtell, & Brissette, PLC (by Mark Brissette ) for Fraser Township.

Outside Legal Counsel, PLC (by Phillip L. Ellison ) for Harvey Haney and Ruth Ann Haney.

Bauckham, Sparks, Thall, Seeber & Kaufman, PC (by Robert E. Thall and T. Seth Koches) for the Michigan Townships Association.

Before: Swartzle, P.J., and Sawyer and Ronayne Krause, JJ.

Per Curiam.

Plaintiff filed this suit seeking injunctive relief to abate a public nuisance. Plaintiff claimed that defendants' piggery violated the zoning ordinance applicable to defendants' property (the land was zoned as commercial and not agricultural). Defendants filed a motion for summary disposition under MCR 2.116(C)(7) (claim barred by statute of limitations). The trial court denied defendants' motion, holding that this was an action in rem and that therefore the statute of limitations did not apply. Defendants appeal by leave granted.¹ We reverse the decision of the trial court and remand the case in order to allow defendants to amend their responsive pleading to include the statute of limitations as an affirmative defense.

I. FACTS

On May 3, 2016, plaintiff filed this action against defendants, alleging that defendants were raising approximately 20 domestic hogs on their property in violation of plaintiff's zoning laws and that defendants were creating a nuisance due to the stench and flies drawn by deer² and hog waste. Defendant Harvey Haney testified that privately owned deer or elk were no longer on the subject property, but he admitted that he began raising hogs on the property in 2006. Plaintiff offered no evidence that defendants continued to bring new hogs onto the property after 2006 or that defendants had actually begun to raise hogs on the property after 2006. Plaintiff sought an injunction precluding defendants from continuing to raise hogs (or other animals that would violate plaintiff's zoning ordinance) on the subject property.

Defendants filed a motion for summary disposition, arguing that plaintiff's claim was time-barred by the six-year general period of limitations set forth in MCL 600.5813. The trial court denied defendants' motion, reasoning that the statute of limitations did not bar plaintiff's complaint because the case constituted an action in rem.

II. STANDARD OF REVIEW

This Court reviews de novo motions for summary disposition under MCR 2.116(C)(7), the applicability of a statute of limitations to a cause of action, and questions of statutory interpretation. Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 386, 738 N.W.2d 664 (2007).

III. ANALYSIS

A motion for summary disposition under MCR 2.116(C)(7) may be raised on the ground that a claim is barred by the statute of limitations. In support of a motion under Subrule (C)(7), a party may provide affidavits, pleadings, depositions, admissions, and other documentary evidence. MCR 2.116(G)(5). Unlike a motion brought under Subrule (C)(10), "a movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material." Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). However, the substance of this material, if provided, must be admissible in evidence. Id . When reviewing motions under Subrule (C)(7),

this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate. [ Dextrom v. Wexford Co. , 287 Mich.App. 406, 428-429, 789 N.W.2d 211 (2010).]

"[O]nly factual allegations, not legal conclusions, are to be taken as true under MCR 2.116(C)(7) ...." Davis v. City of Detroit , 269 Mich.App. 376, 379 n. 1, 711 N.W.2d 462 (2006).

A. WAIVER OF THE STATUTE-OF-LIMITATIONS DEFENSE

Plaintiff argues that defendants cannot prevail on any statute-of-limitations defense because defendants failed to assert a limitations-period defense in their first responsive pleading. However, this case presents the unusual situation in which the trial court made an express holding with respect to the applicability of the asserted statute-of-limitations defense notwithstanding defendants' untimely invocation. The parties briefed and presented their arguments concerning the applicability of the statute of limitations to plaintiff's claim, though plaintiff did not argue until after this appeal was filed that defendants failed to properly assert the statute-of-limitations defense in their responsive pleading. Under these circumstances, we hold that the trial court tried the merits of defendants' statute-of-limitations defense with plaintiff's implied consent. The issue may therefore be treated as if it had been raised in defendants' pleadings, and it is appropriate to remand the case to allow defendants to move to amend their responsive pleading accordingly.

" ‘[T]he running of the statute of limitations is an affirmative defense.’ " Dell v. Citizens Ins. Co. of America , 312 Mich.App. 734, 752, 880 N.W.2d 280 (2015) (citation omitted). "Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118." MCR 2.111(F)(3). Pursuant to MCR 2.118(C)(1),

[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment.

In order for an issue to be "tried" for purposes of MCR 2.118(C)(1), it must be analyzed on its merits by the trial court. Amburgey v. Sauder , 238 Mich.App. 228, 247-248, 605 N.W.2d 84 (1999). The trial court in this case clearly addressed the merits of defendants' untimely assertion of their statute-of-limitations defense, and the parties were given ample opportunity to brief and argue the issue. The issue of the statute of limitations' applicability was therefore "tried." Moreover, a party may give implied consent to the adjudication of an issue by failing to object to the issue before the trial court. Zdrojewski v. Murphy , 254 Mich.App. 50, 61, 657 N.W.2d 721 (2002) ; Grebner v. Clinton Charter Twp. , 216 Mich.App. 736, 744, 550 N.W.2d 265 (1996). In this case, plaintiff did not object until after this appeal was filed to defendants' failure to allege a statute-of-limitations defense in their responsive pleading. Plaintiff briefed arguments against the applicability of the statute of limitations and presented its case to the trial court. Ergo, plaintiff impliedly consented to the adjudication of the issue. See Zdrojewski , 254 Mich.App. at 61, 657 N.W.2d 721.

MCR 2.118(C)(1) is "liberal and permissive .... The only requirement is that the party seeking amendment move to have the court amend the pleadings ...." Zdrojewski , 254 Mich.App. at 61, 657 N.W.2d 721. In this case, defendants have not moved to amend their affirmative defenses. Typically, this would constitute a binding waiver of the defense. Geisland v. Csutoras , 78 Mich.App. 624, 630, 261 N.W.2d 537 (1977). Importantly, however, the text of MCR 2.118(C)(1) expressly allows for motions to amend the pleadings to be made by a party "at any time, even after judgment ." (Emphasis added.) This Court, in Geisland , 78 Mich.App. at 630, 261 N.W.2d 537, held that when one defendant properly asserted a statute-of-limitations defense, the plaintiff was not misled or prejudiced when the other defendants asserted the same defense, and it was appropriate to allow the other defendants to seek leave to amend their answers to include the affirmative defense on remand. This Court in Jesperson v. Auto Club Ins. Ass'n , 306 Mich.App. 632, 647, 858 N.W.2d 105 (2014), rev'd on other grounds 499 Mich. 29, 878 N.W.2d 799 (2016), held that when the trial court could have granted a defendant leave to amend its pleading to include a statute-of-limitations defense not previously asserted and the defense would have barred the plaintiff's claim, the Court's interest in judicial efficiency enabled the Court to forgo remand and simply determine that the statute-of-limitations defense was not waived. Id . Consequently, it does not matter that defendants have so far failed to move to amend their affirmative defenses, as long as a proper amendment ultimately occurs. See id .

Notably, if defendants had moved to amend their responsive pleading, the trial court would have been within its discretion to grant such a motion. The Jesperson Court stated that "leave to amend pleadings should be freely granted to a nonprevailing party at summary disposition, unless amendment would be futile or otherwise unjustified." Id . See also MCR 2.118(A)(2). Aside from futility, other reasons to disallow leave to amend include "undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, [and] undue prejudice to the opposing party by virtue of allowance of the amendment ...." Amburgey , 238 Mich.App. at 247, 605 N.W.2d 84. Critically,

[d]elay, alone, does not warrant denial of a motion to amend. However, a motion may be properly denied if the

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