223 N.W.2d 6 | Mich. Ct. App. | 1974
GEORGE
v.
CITY OF PETOSKEY
Michigan Court of Appeals.
*434 Richard H. Scholl, for plaintiffs.
Nathaniel W. Stroup, City Attorney, for defendant.
Before: HOLBROOK, P.J., and T.M. BURNS and R.L. SMITH,[*] JJ.
R.L. SMITH, J.
On October 12, 1972, plaintiffs commenced suit by filing a two-count complaint against defendant. Count I alleged the defendant and its agents improperly interfered with plaintiffs' enjoyment of their property in that various city officials threatened potential renters of plaintiffs' property that their use of the property would be in violation of zoning regulations, and that suit would be (and in fact was) instituted against them if they rented from plaintiffs. Plaintiffs allege special damages.
Count II repeated the allegations of Count I and added that defendant's agents and officials had intentionally discriminated against and harassed plaintiffs.
On motion for accelerated judgment on the ground that the statute of limitations had run, the trial court dismissed both counts. For the purpose *435 of determining whether or not accelerated judgment was proper under the circumstances, the allegations of the complaint and amendments thereto must be taken at face value. Janiszewski v Behrmann, 345 Mich 8; 75 NW2d 77 (1956).
Plaintiffs allege in Count I that commencing in 1962 defendant's city manager and city attorney threatened suit against their prospective tenants, enumerating five instances of such intimidations, two of which resulted in loss of tenants, one in which there was a compromise worked out between attorneys representing these parties, and two instances where suit was commenced. Suit was commenced by defendant city on January 9, 1968, against plaintiffs and their tenant Smutz, as a result of which Smutz moved out. A subsequent tenant, Bourrie, was added as a party defendant in February, 1970. This suit resulted in a judgment for the Georges, an appeal by the city to the Court of Appeals, and a dismissal for lack of progress of the appeal on October 6, 1971, six days previous to the filing of this suit. In addition to these allegations plaintiffs assert in a bill of particulars to Count II that the building involved in this litigation was sold on May 2, 1973, for delinquency in a sewer assessment which plaintiffs claim had been levied against them as part of the harassment, and further that the city attorney allowed a falsification of council minutes in July, 1971, involving plaintiffs' request for lost rentals.
In the face of these allegations the trial court stated:
"It is clear that the statute of limitations has run on whatever type of action might be claimed that Mr. George was instituting. A libel and slander action is one year under the statute of limitations, a malicious prosecution action has a statute of limitations of two years, *436 and a tort action three years. There is no way in which this could be termed anything in the contract line, which would have a statute of limitations of six years. It is apparent from all of the allegations that all of the actions are barred by the statute of limitations, whether it be one year, two years, or three years, since the date of the starting of the suit was October 13, 1971, and none of the details of the bill of particulars relate to any action, anything between October 13, 1968 and October 13, 1971."
Three sections of the Michigan statutes are relevant to the issue before us. They are:
MCLA 600.5805(7); MSA 27A.5805(7):
"The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property."
MCLA 600.5807(8); MSA 27A.5807(8):
"The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract."
MCLA 600.5813; MSA 27A.5813:
"All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes."
Plaintiffs contend that defendant city pursued their course of conduct against them and their tenants from 1962 until it abandoned its appeal on October 6, 1971, and that the addition of their tenant Bourrie as a defendant in that suit constituted another act of harassment and attempt to deprive them of their rightful enjoyment of their property. A reading of both Counts I and II leads us to the conclusion that the trial judge erred in determining that there was an absence of any alleged wrongful act within the period limited by *437 the statute, assuming that the trial court was right in holding that no more than the three-year statute of limitations was applicable.
"Where there are continuing wrongful acts within the period limited by the statute * * * recovery is not barred." Defnet v Detroit, 327 Mich 254, 258; 41 NW2d 539, 541 (1950).
Applied to the situation before us, that would mean the statute of limitations, whether three years (§ 5805[7]) or six years (§ 5807[8], § 5813), began to run when defendant city dropped the legal proceedings it had brought against plaintiffs and their tenants on October 6, 1971.
We proceed to discuss which of the above statutes is applicable to the pleadings in this case. Neither Count I or Count II seek damages for injuries to persons or property. Neither count is based upon a contractual agreement, express or implied. It is clear that the damages which plaintiffs are seeking are for damages to their financial expectations and economic benefit which they had a right to expect from the ownership of their property. Schenburn v Lehner Associates, Inc, 22 Mich App 534; 177 NW2d 699 (1970); Case v Goren, 43 Mich App 673; 204 NW2d 767 (1972), and Sweet v Shreve, 262 Mich 432; 247 NW 711 (1933).
The process of elimination leads us to the conclusion that the general statute of limitations (§ 5813) applies to the allegations in the complaint before us. We express no opinion as to whether plaintiffs have alleged valid causes of action of whether defendant is entitled to any defenses thereto.
Accelerated judgment for defendant reversed. Remanded to the trial court for further proceedings. Costs to plaintiffs.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
