JOHN C LOUDERMILK V GYROME L EDWARDS
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STATE OF MICHIGAN
COURT OF APPEALS
KEITH MICHALAK,
UNPUBLISHED
May 4, 2001
Plaintiff-Appellant,
v
GYROME L. EDWARDS, JAMES E.
HERSHBERGER and CONSTRUCTION CODE
AUTHORITY, INC.,
No. 215639
Lapeer Circuit Court
LC No. 97-023833-NO
Defendants-Appellees.
JOHN C. LOUDERMILK and QUAKER
CONSTRUCTION, INC.,
Plaintiffs-Appellants,
v
GYROME L. EDWARDS, JAMES E.
HERSHBERGER and CONSTRUCTION CODE
AUTHORITY, INC.,
No. 215640
Lapeer Circuit Court
LC No. 97-023765-NO
Defendants-Appellees.
Before: Smolenski, P.J., and Jansen and Fitzgerald, JJ.
PER CURIAM.
In these consolidated appeals, plaintiffs appeal as of right from the trial court’s orders
granting defendants’ motions for summary disposition under MCR 2.116(C)(7). We affirm.
As an initial matter, we note that the trial court granted defendants’ motions for summary
disposition based on its determination that the applicable limitation periods and governmental
immunity barred plaintiffs’ claims. Plaintiffs do not directly address those rulings on appeal.
Instead, plaintiffs argue that the trial court erroneously granted summary disposition because
plaintiffs provided sufficient evidence to factually support their claims. This question was
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neither presented to nor considered by the trial court and did not serve as the basis for the court’s
rulings.1 Appellate relief is ordinarily precluded where an appellant fails to address an issue that
must necessarily be decided. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 175; 568
NW2d 365 (1997); Roberts & Son Contracting, Inc v North Oakland Development Corp, 163
Mich App 109, 113; 413 NW2d 744 (1987).
Nevertheless, even if plaintiffs had properly presented these issues for appellate review,
we would affirm the trial court’s decision granting defendants’ motions for summary disposition
under MCR 2.116(C)(7) because the applicable limitation periods barred plaintiffs’ claims.2
We review de novo a trial court’s decision that a plaintiff’s cause of action is barred by
the statute of limitations. Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 340-341;
573 NW2d 637 (1997). In reviewing a motion for summary disposition granted pursuant to
MCR 2.116(C)(7), this Court must accept the plaintiff’s well-pleaded allegations as true and
consider all the documentary evidence submitted by the parties. Shawl v Dhital, 209 Mich App
321, 323-324; 529 NW2d 661 (1995). The motion should not be granted if there are disputed
factual issues concerning when the discovery of the claim occurred or reasonably should have
occurred. Id. at 324.
Plaintiff Michalak’s complaint alleged claims for: (1) intentional infliction of emotional
distress, (2) intentional interference with contractual relations, (3) negligence, (4) negligent
entrustment, and (5) negligent misrepresentation. Plaintiff Loudermilk’s complaint alleged those
same claims, as well as: (1) defamation, (2) invasion of privacy, and (3) disparagement. The
statutory limitation period governing defamation claims is one year. MCL 600.5805(8); MSA
27A.5805(8). The limitation period for “all actions to recover damages . . . for injury to a person
or property” is three years. MCL 600.5805(9); MSA 27A.5805(9).3 Before the trial court,
plaintiffs primarily argued that the filing of earlier state and federal lawsuits tolled the statutory
limitation periods. We conclude that neither of plaintiffs’ prior lawsuits resulted in tolling.
Plaintiffs filed an earlier lawsuit against defendants in state circuit court, on May 11,
1993. Plaintiffs argued below that the filing of that complaint triggered the tolling provision
contained in MCL 600.5856; MSA 27A.5856. The tolling statute provides, in pertinent part:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the summons and complaint
are served on the defendant. [MCL 600.5856; MSA 27A.5856 (emphasis
added).]
1
Further, the factual support for a plaintiff’s claim becomes irrelevant when a statutory limitation
period or governmental immunity operates to bar that claim.
2
Because we conclude that plaintiffs’ claims are time-barred, we decline to address whether
those claims are also barred by governmental immunity.
3
Plaintiffs do not dispute the trial court’s determination that the one-year and three-year
limitation periods govern their claims.
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Although plaintiff argued below that mere filing of a complaint tolls the statute of
limitation periods, the statute provides otherwise. The trial court made a factual finding that
plaintiffs never served the summons and complaint on defendants. Plaintiffs have not challenged
that finding on appeal. Therefore, the filing of plaintiffs’ earlier state court lawsuit did not
trigger the tolling provision contained in MCL 600.5856; MSA 27A.5856.
Plaintiffs also filed a lawsuit against defendants in federal district court, on December 23,
1994. Plaintiffs argued below that the filing of the federal complaint and the subsequent appeal
to the Sixth Circuit tolled the statutory limitation periods. The filing of a federal lawsuit tolls
statutory limitation periods in the same manner as the filing of a lawsuit in state court. Lee v
Grand Rapids Board of Education, 148 Mich App 364, 370; 384 NW2d 165 (1986). However,
the tolling provision contained in MCL 600.5856; MSA 27A.5856 only applies to prior actions
which did not result in an adjudication on the merits. Sherrell v Bugaski, 169 Mich App 10, 17;
425 NW2d 707 (1988); Meda v City of Howell, 110 Mich App 179, 182; 312 NW2d 202 (1981).
Where a federal court’s order dismissing a plaintiff’s case was not a “ministerial dismissal
entered in a routine fashion but, instead, was a discretionary determination of the federal judge
based on the individual facts of the case,” the dismissal qualifies as an adjudication on the merits.
Carter v SEMTA, 135 Mich App 261, 265; 351 NW2d 920 (1984). Because there is nothing in
the record before us to indicate that the federal district and circuit courts entered a “ministerial
dismissal,” rather than an adjudication on the merits, we conclude that the filing of plaintiffs’
federal lawsuit did not toll the applicable statutory limitation periods.
Plaintiffs filed the instant actions on September 6, 1996. Because the longest limitation
period applicable to any of plaintiffs’ claims is three years, plaintiffs’ claims are time-barred if
they accrued before September, 1993. The general accrual statute, MCL 600.5827; MSA
27A.5827, provides that a plaintiff’s claim accrues “at the time the wrong upon which the claim
is based was done regardless of the time when damage results.” Under that statute, a plaintiffs’
“‘cause of action accrues when all of the elements of the cause of action have occurred and can
be alleged in a proper complaint.’” Arent v Hatch, 133 Mich App 700, 704-705; 349 NW2d 536
(1984), quoting Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150;
200 NW2d 70 (1972). Because plaintiffs filed their first complaint against defendants in state
court on May 11, 1993, it is clear that plaintiffs’ claims had occurred and could have been
alleged in a proper complaint by that date. Accordingly, we hold that the trial court properly
granted defendants’ motions for summary disposition based on the running of the applicable
statutory limitation periods.
Affirmed.
/s/ Michael R. Smolenski
/s/ Kathleen Jansen
/s/ E. Thomas Fitzgerald
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