951 N.W.2d 97
Mich. Ct. App.2020Background
- Township of Fraser sought injunctive relief and the Haneys 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, concluding the statute of limitations did not apply because the action was in rem.
- This Court originally reversed the trial court, holding the limitations defense could be raised and remanded to allow the defense to be asserted.
- The Michigan Supreme Court vacated and remanded to this Court to address whether that opinion conflicted with Baker v Marshall; the panel invited supplemental briefing.
- On remand the panel distinguished Baker, concluded the statute-of-limitations defense was not waived because plaintiff had litigated the merits, and reaffirmed its original reversal and remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute of limitations applies to this in rem injunctive action | Limitations inapplicable because the action is in rem | Limitations applies and bars the claim under MCL 600.5813 | Court reversed trial court: limitations defense may apply; remanded for further proceedings |
| Whether defendants waived the statute-of-limitations defense by not pleading it | Waiver because defense not raised in responsive pleading as affirmative defense | No waiver: plaintiff responded on the merits, so defense was tried by consent under MCR 2.118(C)(1) | No waiver: defense treated as if pled because it was tried by express/implied consent |
| Whether this decision conflicts with Baker v Marshall (waiver rule for unpled affirmative defenses) | Baker requires waiver when affirmative defenses are not pled | Baker is distinguishable because, unlike Baker, plaintiff here litigated the statute-of-limitations issue | Court finds this case consistent with Baker; factual difference controls |
| Whether plaintiff was excused from preserving the waiver argument because the court heard the motion | Plaintiff argues it was proper to litigate rather than object to the court hearing the motion | Defendants argue plaintiff could have and should have raised waiver in its response and at the hearing | Court rejects plaintiff’s excuse: plaintiff could have preserved the waiver argument; though courts may raise issues sua sponte, plaintiff’s conduct implied consent to try the defense |
Key Cases Cited
- Township of Fraser v Haney, 327 Mich App 1 (2019) (original panel decision treating statute-of-limitations defense as litigated by consent and reversing trial court)
- Baker v Marshall, 323 Mich App 590 (2018) (failure to plead an affirmative defense like fraud constitutes waiver)
- In re Gach, 315 Mich App 83 (2016) (party generally not required to preserve objection to an issue raised sua sponte by the court)