BONNIE JEAN PERRY V HURON COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
BONNIE JEAN PERRY,
UNPUBLISHED
July 5, 1996
Plaintiff-Appellant,
v
No. 173241
LC No. 93-008322-NZ
HURON COUNTY, a Michigan Municipal
Corporation,
Defendant-Appellee.
Before: Neff, P.J., and Smolenski and D.A. Johnston,* JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendant. We
affirm.
Plaintiff was terminated from her position as executive secretary for the sheriff of Huron County
by the incumbent sheriff effective January 1, 1989. Plaintiff brought this action over four years later
alleging, in relevant part, wrongful discharge in violation of a just-cause employment contract. The trial
court granted defendant's subsequent motion for summary disposition pursuant to MCR 2.116(C)(10).
The trial court found that as of January 1, 1989, no question of fact existed that "plaintiff was an at-will
employee and that it was within the powers of the incumbent sheriff to terminate her employment
without just cause."
Thereafter, plaintiff moved to amend her complaint to allege a claim of retaliatory discharge in
violation of public policy. Plaintiff alleged that she had been terminated by the incumbent sheriff in
retaliation for exercising various constitutional and statutory rights.1 Plaintiff sought damages for loss of
back pay, future pay and fringe benefits.
In response, defendant argued, in relevant part, that plaintiff's claim of retaliatory discharge
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
sounded in tort pursuant to Dunbar v Dep't of Mental Health, 197 Mich App 1; 495 NW2d 152
(1992),2 and was therefore barred by the three-year limitation period contained in MCL 600.5805(8);
MSA 27A.5805(8).
The trial court found defendant's argument dispositive and denied plaintiff's motion. Specifically,
the trial court found that the violation of rights alleged by plaintiff were injuries to persons or property
and that plaintiff's proposed amendment therefore fell within the three-year limitation period contained in
MCL 600.5805(8); MSA 27A.5805(8).
On appeal, plaintiff contends that the trial court erred in denying her motion to amend.
Specifically, plaintiff argues that her claim of retaliatory discharge sounds in contract and, therefore, the
six-year limitation period contained in MCL 600.5807(8); MSA 27A.5807(8) is applicable.3
MCR 2.116((I)(5) provides that where the grounds asserted in a motion for summary
disposition are based on 2.116(C)(8), (9) or (10), the court shall give the parties an opportunity to
amend their pleadings "unless the evidence then before the court shows that amendment would not be
justified." This Court will not reverse a trial court's decision concerning a motion to amend absent an
abuse of discretion that results in injustice. Taylor v Detroit, 182 Mich App 583, 586; 452 NW2d
826 (1989).
In the absence of disputed facts, the question whether a plaintiff's action is barred by a statute of
limitations is a question of law to be determined by the trial judge. Michigan Employment Security
Comm v Westphal, 214 Mich App 261, 263; 542 NW2d 360 (1995). On appeal, this Court reviews
issues of law de novo. Id.
As explained in Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239,
244; 531 NW2d 144 (1995):
The general rule is that "in the absence of a contractual basis for holding
otherwise, either party to an employment contract for an indefinite term may terminate it
at any time for any, or no, reason." Suchodolski v Michigan Consolidated Gas Co,
412 Mich 692, 694-695; 316 NW2d 710 (1982). This Court continued that
nevertheless "some grounds for discharging an employee are so contrary to public policy
as to be actionable." In addition to statutory causes of action for violation of explicit
prohibitions, causes of action have been implied where the employee was discharged for
failure or refusal to violate a law in the course of employment.
This Court continued in Suchodolski that "the courts have found implied a
prohibition on retaliatory discharges when the reason for a discharge was the employee's
exercise of a right conferred by a well-established legislative enactment."
2
In Phillips, our Supreme Court held that a claim of retaliatory discharge for filing a worker's
compensation claim sounds in tort, not contract.4 The Court's rationale was that the source of an
employee's right against retaliatory discharge for filing a worker's compensation claim does not stem from
any implied promise by the employer or term agreed upon by the contracting parties. Id. at 246, 248.
Rather, the source of such a right by the employee arises independently from the employment contract,
i.e., from public policy as expressed in 301(11) of the Workers Disability Compensation Act, MCL
418.301(11); MSA 17.237(301). Id. at 246-247. Because the employee's claim of retaliatory
discharge sounded in tort, the Court further held that the employee's damages were not limited by
contract principles. Id. at 251. Accordingly, the employee could recover full compensatory damages,
including damages for lost wages and mental and emotional distress. Id. at 249-254.
In this case, the source of plaintiff's alleged right against retaliatory discharge does not arise from
any implied promise or term agreed upon by defendant or the incumbent sheriff. Rather, the source of
plaintiff's alleged right against retaliatory discharge arises independently of plaintiff's at-will employment
contract, i.e., from public policy as expressed in the statutory and constitutional provisions plaintiff has
cited. Like Phillips, we conclude that plaintiff's claim of retaliatory discharge sounds in tort, not
contract.5 Accordingly, we conclude that the trial court did not commit an error of law in determining that
the six-year statute of limitations applicable to contract actions did not apply to plaintiff's claim of
retaliatory discharge. Therefore, it appears that plaintiff's proposed amendment would not be justified in
light of the trial court's holding that plaintiff's tort claim was barred by the three-year limitation period
contained in MCL 600.5805(8); MSA 27A.5805(8). See MCR 2.116(I)(5). We note that plaintiff has
not pursued on appeal any issue concerning the applicability of other statutory provisions limiting the time
within which a tort action must be brought.6 See, e.g., MCL 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."); see also, generally, MCL 600.5805; MSA
27A.5805; Local 1064, RWDSU, AFL-CIO v Ernst & Young, 449 Mich 322; 535 NW2d 187
(1995). Thus, we cannot say that the trial court abused its discretion in refusing to permit plaintiff to
amend her complaint.
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Donald A. Johnston
1
Specifically, plaintiff contended that she had been terminated by the incumbent sheriff for exercising
rights granted to her under (1) the First Amendment, US Const, Am I; (2) the standards of conduct for
public officers and employees act, MCL 15.341 et seq.; MSA 4.1700(71) et seq., and; (3) the
political activities by public employees act, MCL 15.401 et seq.; MSA 4.1702(1) et seq. On appeal,
plaintiff has abandoned any claim asserted under the former statute.
3
2
In Dunbar, supra at 10, this Court held that a claim of retaliatory discharge for having filed a workers’
compensation claim sounds in tort, not contract.
3
As authority for this argument, plaintiff relies on Mourad v Automobile Club Ins Ass’n, 186 Mich
App 715; 465 NW2d 395 (1991), Lopus v L&L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d
757 (1988), and Watassek v Dep’t of Mental Health, 143 Mich App 556; 372 NW2d 617 (1985).
In these cases, this Court held that a claim of retaliatory discharge sounds in contract. Mourad, supra
at 727; Lopus, supra at 489-491; Watassek, supra at 564-565. Plaintiff requests that this Court
reject the contrary holding in Dunbar, supra.
4
In so holding, the Court expressly noted the conflict between the cases relied on by plaintiff, i.e.,
Mourad, Lopus and Watassek, see note 3, supra, and the case relied on by defendant, i.e., Dunbar.
See Phillips, supra at 245-246.
5
See also Lear v Brighton Twp, 184 Mich App 605, 607-608; 459 NW2d 26 (1990):
Where the nature and origin of an action to recover damages for injury to
property arises by “implication of law,” the three-year limitation period under § 5805(8)
applies, despite the fact that the claim is stated under a contract theory. . . . However,
where the contract action is based upon the breach of an express promise, then the six
year limitation period provided by § 5807(8) applies. [Citations omitted.]
6
We express no opinion on the applicability of these provisions.
4
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