CITY OF LITCHFIELD V UNION CONSTRUCTION CO
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF LITCHFIELD,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 189823
Hillsdale Circuit Court
LC No. 92-22554 CK
UNION CONSTRUCTION COMPANY and ,
ALAN E. RINGENBERG d/b/a RINGENBERG
ENGINEERING,
Defendants-Appellees.
Before: O’Connell, P.J., and Smolenski and T.G. Power*, JJ.
O’CONNELL, P.J. (concurring in part and dissenting in part).
I concur with the majority’s conclusion that MCL 600.5839(1); MSA 27A.5839(1), does not
apply to the present action.
I also agree with the majority that the statute of limitations governing contract actions, MCL
600.5807(8); MSA 27A.5807(8), applies to the present dispute.
However, assuming that the fraudulent concealment statute, MCL 600.5855; MSA 27A.5855,
applies, I do not believe that plaintiff has alleged facts that, even if proven, would constitute fraudulent
concealment. As summarized by the majority, plaintiff alleged only that defendants “fail[ed] to disclose
the [alleged] breaches to plaintiff,” “falsely represent[ed] that Simpson Drive was constructed to
specification,” and “cover[ed] the roadbed . . . with what appeared to be a proper . . . surface.” Quite
simply, there is no difference between these allegations and the allegation that the contract was
breached. To consider these allegations, if proven, to constitute fraudulent concealment would be
tantamount to holding that in virtually every situation in which a party delivers a product to another that
does not meet specifications, it has engaged in fraudulent concealment. To so read the fraudulent
concealment statute would vitiate the statute of limitations in contract actions almost entirely.
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
I would affirm.
/s/ Peter D. O’Connell
-2
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