SAVIRO INTL CO ANSTALT V CADILLAC GAGE TEXTRON INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
SAVIRO INTERNATIONAL COMPANY
June 2, 1998
Macomb Circuit Court
LC No. 96-004277 CK
CADILLAC GAGE TEXTRON, INC.,
Before: Holbrook, Jr., P.J. and Gribbs and R.J. Danhof*, JJ.
Defendant makes this interlocutory appeal by leave granted from the trial court’s opinion and
order in which defendant’s motion for summary disposition based on a statute of limitations argument
was denied. We reverse and remand for further proceedings in accordance with this opinion.
Defendant argues that the trial court erred in applying the fraudulent concealment exception
where plaintiff’s claims were otherwise barred by the applicable statute of limitations and that summary
disposition pursuant to MCR 2.116(C)(7) should have been granted in favor of defendant. We agree.
This Court reviews de novo a trial court’s grant or denial of a motion for summary disposition
pursuant to MCR 2.116(C)(7) in order to determine whether the prevailing party was entitled to
judgment as a matter of law. Smith v YMCA of Benton Harbor, 216 Mich App 552, 554; 550
NW2d 262 (1996).
Plaintiff’s claims are clearly barred by the applicable statute of limitations unless the fraudulent
concealment exception applies. Under the fraudulent concealment statute, MCL 600.5855; MSA
27A.5855, the limitation period is tolled where a party conceals the fact that plaintiff has a cause of
action. Phinney v Perlmutter, 222 Mich App 513, 562; 564 NW2d 532 (1997).
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
Generally, in order to toll the limitations period on the basis of fraudulent concealment, a plaintiff
must plead in his complaint the acts or misrepresentations which constituted the fraudulent concealment.
Id. at 562-563. The plaintiff must then prove that the defendant committed affirmative acts of
misrepresentation that were designed to prevent subsequent discovery. Id. at 563. Mere silence is
insufficient. Sills v Oakland General Hospital, 220 Mich App 303, 310; 559 NW2d 348 (1996). In
this case, other than silence, there is no act or misrepresentation alleged by plaintiff that indicates
defendant ever concealed such a cause of action. However, where the basis of the action is a fraud
perpetrated by the defendant, the original fraud is regarded as a continuing affirmative act, and mere
silence of the defendant is treated as a concealment for purposes of tolling the period of limitations.
Draws v Levin, 332 Mich 447; 52 NW2d 180 (1952).
Nevertheless, even assuming that plaintiff has shown affirmative acts sufficient to invoke the
protection of the statute, the statute allows tolling only for a period of two years from the time the
existence of the claim was discovered or should have been discovered. MCL 600.5855; MSA
27A.5855. Where a plaintiff knows of the cause of action, there can be no concealment. Weast v
Duffie, 272 Mich 534, 539; 262 NW 401 (1935). A plaintiff is held to know what he ought to know
through the exercise of ordinary diligence. Id.
In the present case, we find that plaintiff, through ordinary diligence, should have discovered the
existence of the claim at the time of Canadian lawsuits between the parties. The claim defendant
allegedly concealed through its silence was one of fraud, specifically, that defendant never intended to
pay the commissions. Clearly, plaintiff knew that the commissions were not paid when it filed the
Canadian litigation to recover the unpaid commissions. Moreover, during the course of the Canadian
litigation, plaintiff’s own representative indicated in a sworn statement that defendant had engaged in lies
and misleading statements as to the commissions, that plaintiff was aware of rumors as to dishonest
dealings on the part of defendant in the form of kickbacks, and that he personally believed that
defendant had been actively trying to “circumvent their responsibilities” and avoid paying plaintiff
commissions. We believe that this testimony would cause a reasonable person to question whether
defendant ever intended to pay commissions. Whether plaintiff could prove its claim is irrelevant to the
issue. It is not necessary that a plaintiff know all the details of the evidence by which to establish his
cause of action; it is sufficient that he knows that a cause of action exists. Id. at 539.
The final Canadian lawsuit was dismissed in 1987. Therefore, under the statute, we find that
plaintiff’s claims were barred as of 1989, more than six years before this instant lawsuit was filed. The
trial court incorrectly applied the fraudulent concealment statute and erred in denying defendant’s motion
for summary disposition.
Reversed and remanded for entry of a judgment in favor of defendant. We do not retain
/s/ Donald E. Holbrook, Jr.
/s/ Roman S. Gribbs
/s/ Robert J. Danhof