GWENDOLYN COLLINS V COMERICA BANK
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STATE OF MICHIGAN
COURT OF APPEALS
GWENDOLYN COLLINS,
UNPUBLISHED
April 30, 2002
Plaintiff-Appellee,
v
COMERICA BANK and CATHY MASALSKIS
No. 227834
Wayne Circuit Court
LC No. 99-930376
Defendants-Appellants.
Before: Whitbeck, C.J., and Wilder and Zahra, JJ.
PER CURIAM.
Defendants appeal by leave granted1 from a circuit court order denying defendant’s
motions for summary disposition and also denying the alternative motion to strike the claims
against defendant Cathy Masalskis for lack of service.2 Because we find that plaintiff’s claims
against defendants are time barred by the applicable statutes of limitation, we reverse and
remand for entry of summary disposition in favor of defendants.
I. Facts and Proceedings
In September 1996, plaintiff was accused of several inappropriate acts in connection with
her employment with defendant. Plaintiff was alleged to have accepted cash “tips” from bank
customers and signed withdrawal slips and processed withdrawals from a customer account
when she was not authorized to do so. Masalskis was assigned to investigate these accusations.
Because plaintiff refused to cooperate with Masalskis’ investigation, she was suspended with pay
on September 5, 1996. On September 18, 1996, Masalskis concluded her investigation and as a
result of the investigation findings, plaintiff was “fired” on September 25, 1996.
On September 24, 1999, plaintiff filed her complaint, alleging race and gender
discrimination, invasion of privacy, and tortious interference of contractual and business
1
Collins v Comerica Bank, unpublished order of the Court of Appeals, issued August 2, 2000.
While the leave application apparently was filed only by defendant, it is apparent that the
application argued on behalf of both defendant and Masalskis. Therefore, we consider the
application as being filed by both parties.
2
For ease of reference, for the remainder of this opinion, “defendant” will refer to Comerica
Bank and Cathy Masalskis will be referred to by her last name.
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relations.3 The trial court set a discovery cutoff date of May 5, 1999. Defendant moved for
summary disposition, arguing that the complaint was filed after the three-year statute of
limitations. Defendant also moved to strike plaintiff’s claims against Masalskis because she was
never served. On April 5, 2000, the circuit court denied defendant’s motion. Defendant filed a
motion for reconsideration and stay which was also denied by the circuit court. Defendants then
sought leave to appeal to this Court, arguing that plaintiff’s claims were filed after the three year
statute of limitations, that Masalskis was never served the summons and complaints, and
alternatively that at least the tortious interference and invasion of privacy claims must be
dismissed because plaintiff did not allege facts in support of those claims. This Court granted
defendants leave application, limited to the issues raised in the application for leave.
II. Standard of Review
Whether a cause of action is barred by a period of limitations is a question of law that we
review de novo. Todorov v Alexander, 236 Mich App 464, 467; 600 NW2d 418 (1999). If a
cause of action is time-barred, then summary disposition is appropriate under MCR 2.116(C)(7).
See McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999). We also review de
novo a trial court’s decision to grant or deny summary disposition pursuant to MCR
2.116(C)(7).4 Id. at 200-201, citing Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681;
599 NW2d 546 (1999). In reviewing whether summary disposition is appropriate under MCR
2.116(C)(7), we consider all the documentary evidence submitted by the parties and accept the
plaintiff's well-pleaded allegations, except those contradicted by documentary evidence, as true.
Uncontradicted allegations are viewed in favor of the plaintiff. Novak, supra at 681-682, citing
Iovino v Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998) and Patterson v Kleiman,
447 Mich 429, 433-435; 526 NW2d 879 (1994).
III. Analysis
On appeal, defendants first contend that the circuit court erred by finding that plaintiff’s
claims were not time-barred by the three year statute of limitations provided by MCL
600.5805(9). We agree.
In Parker v Cadillac Gage Textron, Inc, 214 Mich App 288, 290; 542 NW2d 365 (1995),
this Court held the following:
A claim of discriminatory discharge accrues on the date the plaintiff was
discharged. The last day worked is the date of discharge. Subsequent severance
or vacation pay does not affect the date of discharge. In this case, plaintiffs filed
their case more than three years after the date they were discharged. Despite the
3
The tortious interference of contractual and business relations was against Masalskis only.
4
While defendants summary disposition motion was brought and reviewed under MCR
2.116(C)(8) and (10), we may review the trial court’s ruling under the proper subrule. Limback v
Oakland County Bd of County Road Comm’rs, 226 Mich App 389, 395, n 3, citing Shirilla v
Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995).
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fact that January 7, 1991, may have been plaintiffs’ “effective date” of separation,
it is undisputed that the last day they actually worked was December 21, 1990. . . .
[T]he three-year statute of limitations bars plaintiffs’ suit. [Internal citations
omitted; emphasis added; emphasis in original omitted. See also Womack-Scott v
Dep’t of Corrections, 246 Mich App 70, 75-76; 630 NW2d 650 (2001).]
Because plaintiff’s last day of work was September 5, 1996, claims of race and gender
discrimination were required to be filed on or before September 5, 1999. Since plaintiff’s
complaint was not filed until September 24, 1999, her discrimination claims were time-barred
and the trial court erred when it denied defendant’s motion for summary disposition on these
claims.
The trial court also erred when it denied summary disposition of plaintiff’s claims for
both tortious interference of contract and business relations and invasion of privacy, since these
claims are also subject to a three-year statute of limitations. See James v Logee, 150 Mich App
35, 37-38; 388 NW2d 294 (1986), Arent v Hatch, 133 Mich App 700, 702, 705; 349 NW2d 536
(1984), Meyer v Hubbell, 117 Mich App 699, 710; 324 NW2d 139 (1982), and MCL
600.5805(9);5 see also Johnson v Ventra Group, Inc, 191 F 3d 732, 746 (CA 6, 1999). Statutes
of limitations in tort claims begin to run at the time all elements, including damages, can be
alleged in a proper complaint. Travelers Ins Co v Guardian Alarm Co of Michigan, 231 Mich
App 473, 479; 586 NW2d 760 (1998).
Here, plaintiff’s tortious interference claim against Masalskis arose from Masalskis’
investigation of plaintiff’s alleged misconduct. The elements of this claim accrued no later than
September 18, 1996, the date Masalskis concluded her investigation and issued her findings.
Arent, supra. Accordingly, plaintiff’s tortious interference claim is time barred for her failure to
bring the claim within three years of the alleged injury, Masalskis’ report, and summary
disposition under MCR 2.116(C)(7) should have been granted. Arent, supra. Johnson, supra;
MCL 600.5805(9).
For similar reasons, plaintiff’s invasion of privacy claims also are time barred. For
purposes of invasion of privacy claims, a person is wronged “when the curtain of privacy is
lifted.” Arent, supra at 705, quoting Hawley v Professional Credit Bureau, Inc, 345 Mich 500,
514; 76 NW2d 835 (1956). Plaintiff’s complaint lists, among other things, the following
allegations as support for her invasion of privacy claim:
10. That in mid September 1999 [sic],[6] Defendant Masalskis used a
Customer Service ruse when she called one of Defendant’s 30 year customers in
an attempt to elicit and coerce false and disparaging statements against Plaintiff.
5
While the cited cases refer to MCL 600.5805(8), we note that MCL 600.5805 was amended by
PA 2000, No 2; thus, the appropriate citation would now be to subsection 9 instead of subsection
8.
6
Plaintiff’s exhibits filed in support of her complaint, as well as the underlying facts in this case,
make it apparent that this was a typographical error and that plaintiff was referring to 1996, not
1999.
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11. That after the Defendant’s 30 year customer refused to disparage
Plaintiff . . . Defendant Masalskis summarized their conversation in a deceptive,
false, disparaging, and misleading manner.
12. Defendant Masalskis and other agents of Defendant falsely accused
Plaintiff of accepting cash gifts from one of Defendant’s seven year customers.
***
14. That after conspiring, concocting, and directing the above false and
embarrassing charges against Plaintiff and publishing same so as to put Plaintiff
in a false light in the public eye (See Exhibits 3, 4, and 6.), Defendant determined
that it could not substantiate said allegations.
15. That Defendant Masalskis attempted to coerce false and disparaging
statements about Plaintiff from Defendant’s employees and customers so as to put
Plaintiff in a false light in the public eye. (See Exhibits 3, 4, and 6.)
***
32. That Michigan’s [sic] law makes it unlawful to invade Plaintiff’s right
to privacy and Defendants have invaded Plaintiff’s right to privacy by publishing
and making public false disclosures, which would be objectionable to a
reasonable person under the circumstances, that place Plaintiff in a false light in
the public eye, as more particularly described above.
***
35. That Michigan’s [sic] law makes it unlawful to invade Plaintiff’s right
to privacy and Defendants have invaded Plaintiff’s right to privacy by publishing
and making public disclosures, which would be objectionable to a reasonable
person with ordinary sensibilities, as more particularly described above.
Giving plaintiff the benefit of all doubt, exhibit four (that plaintiff incorporates into her
complaint) indicates that plaintiff first became aware of Masalskis’ alleged attempt to place her
in a false light on September 4, 1996, when she received a phone call from an individual
indicating that Masalskis had contacted him on September 3, 1996. Hence, assuming without
deciding that Masalskis’ actions amounted to invasion of privacy, it is clear from plaintiff’s
complaint that the claim accrued as early as September 4, 1996, more than three years before
plaintiff’s complaint was filed. Thus, plaintiff’s invasion of privacy claim was time-barred by
the three-year statute of limitations. MCL 600.5805(9); Arent, supra.
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For the above stated reasons, we reverse the circuit court order denying defendants
summary disposition and remand with instructions that the trial court enter an order granting
defendants summary disposition pursuant to MCR 2.116(C)(7). We do not retain jurisdiction.7
/s/ William C. Whitbeck
/s/ Kurtis T. Wilder
/s/ Brian K. Zahra
7
Because we find that plaintiff’s claims against both defendants are time barred, we need not
decide the remaining claims on appeal.
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