RICHARD M DAY V ROBERT D STANTONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
RICHARD M. DAY, JOE R. DAY and AUSTIN
TUBE PRODUCTS, INC.,
May 26, 1998
ROBERT D. STANTON and WALZ, JORDAN &
STANTON, P.C., also known as WALZ STANTON
Mecosta Circuit Court
LC No. 95-011029 NM
Before: Holbrook, Jr., P.J., and White and J.W. Fitzgerald,* JJ.
Plaintiffs appeal by right from an order granting summary disposition in favor of defendants
pursuant to MCR 2.116(C)(7), based on a determination that the statute of limitations had run on
plaintiffs’ legal malpractice claim. We affirm.
Plaintiffs argue that their claim was timely under the six-month discovery rule for malpractice
actions, MCL 600.5805; MSA 27A.5805, MCL 600.5838; MSA 27A.5838, because they filed their
complaint within six months of when they identified the probable source of continuing contamination at
their site. We find no merit to this argument.
The Michigan Supreme Court has adopted the “possible cause of action” standard for
determining when the discovery period begins to run. Solowy v Oakwood Hospital Corp, 454 Mich
214, 232; 561 NW2d 843 (1997). Here, plaintiffs assert that defendants, who had assisted them in
purchasing the subject property, committed legal malpractice in not seeking an environmental audit of
the property before the purchase was completed. Plaintiffs’ complaint alleged that “had an
environmental audit or investigation been conducted prior to Plaintiffs’ [sic] acquiring the site in 1984,
the existence of contamination would have been discovered, and the purchase either would not have
taken place or would have taken place on vastly different terms.” Thus, to prevail on their claim,
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
plaintiffs needed only to identify a pre-purchase source of contamination; they did not need to identify
who or what was the source of the contaminant. The documentary evidence submitted to the trial court
indicates that plaintiffs were on notice as early as July 1990 of the possibility that there were other
sources of contamination, and were informed in May 1993 that “spillage during previous ownership”
was one of the possibilities that could account for the continued problem. Accordingly, plaintiffs’
complaint, which was not filed until July 1995, was time-barred.
Finally, contrary to plaintiffs’ argument, the trial court did not make a finding on a disputed
factual issue. The trial court properly concluded as a matter of law that plaintiffs had not filed their
complaint within six months of discovering, with reasonable diligence, the existence of a possible cause
of action against defendants. Accordingly, summary disposition was properly granted pursuant to MCR
/s/ Donald E. Holbrook, Jr.
/s/ Helene N. White
/s/ John W. Fitzgerald