932 N.W.2d 239
Mich. Ct. App.2018Background
- Township of Fraser sued Harvey and Ruth Ann Haney in 2016 seeking injunctive abatement of a piggery alleged to violate local zoning and to constitute a public nuisance (stench, flies).
- Haney admitted he began raising hogs on the property in 2006; plaintiff produced no evidence of new hogs introduced after 2006.
- Defendants moved for summary disposition under MCR 2.116(C)(7) arguing the six-year statute of limitations (MCL 600.5813) barred the claim.
- The trial court denied the motion, treating the action as in rem and concluding the limitations period did not apply.
- On appeal, the Court of Appeals treated defendants’ limitations defense as tried by implied consent, held the claim is time-barred, reversed the denial, and remanded so defendants may amend their pleadings to assert the defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived statute-of-limitations defense | Defendants failed to plead the defense in their first responsive pleading so it is waived | Even if not pleaded, the trial court adjudicated the limitation issue with plaintiff’s implied consent so it may be treated as tried and amended later | Defense was tried by implied consent; remand permitted to allow amendment to plead the defense |
| Applicable limitations period for municipal public-nuisance abatement suits | Limitations may not apply because action is in rem or because continuing violations restart accrual | Six-year general period (MCL 600.5813) applies and accrual runs from the initial wrongful act | Six-year period applies; claim accrued when hogs were first kept (2006), so 2016 suit is time-barred |
| Whether continuing-violation/continuing-wrong doctrine restarts accrual each day defendants keep hogs | Each day is a separate offense under local ordinance; accrual restarts daily | Michigan abolished the continuing-wrongs doctrine; accrual is at the time of the initial wrongful act | Continuing-wrongs doctrine is inapplicable in Michigan; no new accrual absent evidence of new wrongful acts |
| Whether the action is in rem (excluding sovereign from limitations) | An abatement action is in rem, therefore sovereign immunity from limitations should apply | The suit is in personam against the property owners seeking compliance; statutes apply to governmental plaintiffs | Action is in personam and not exempt; statutes of limitation apply to government plaintiffs |
Key Cases Cited
- Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378 (Michigan Supreme Court 2007) (discovery rule not available to toll accrual under MCL 600.5827)
- Dep’t of Environmental Quality v. Waterous Co., 279 Mich. App. 346 (Michigan Ct. App. 2008) (government injunctive abatement of public nuisance subject to six-year limitation)
- Marilyn Froling Revocable Trust v. Bloomfield Hills Country Club, 283 Mich. App. 264 (Michigan Ct. App. 2009) (continuing-wrongs doctrine abrogated in Michigan)
- City of Detroit v. [Title omitted in opinion], 258 Mich. App. 438 (Michigan Ct. App. 2003) (distinguishing actions in rem and in personam; sovereign exemption from limitations discussed)
- Jesperson v. Auto Club Ins. Ass’n, 306 Mich. App. 632 (Michigan Ct. App. 2014) (leave to amend pleadings to assert statute-of-limitations defense at summary disposition; liberal amendment policy)