Allen v. Vill. of Goodrich

1

TERESE ALLEN, ATLAS VALLEY GOLF AND COUNTRY CLUB, INC., CYNTHIA BEEBE, DAVISON COUNTRY CLUB, KENNY HUBBARD, GAIL HUBBARD, IMA RECREATION ASSOCIATION, TIM KLEINDL, APRIL KLEINDL, JULIA NEVILLE, JOHN PAVLICK, CAITLIN PAVLICK, TRACEY PLUMMER, and COREY ROBINSON, Plaintiffs-Appellants, and BRENT OSKEY, HANNI OSKEY, LAWRENCE PETE, JESSICA PETE, and EDWARD WELCH, Plaintiffs, v. VILLAGE OF GOODRICH, Defendant/Cross-Plaintiff-Appellee, and GENESEE COUNTY DRAIN COMMISSIONER DIVISION OF SURFACE WATER MANAGEMENT, Defendant/Cross-Defendant-Appellee, and GENESEE COUNTY DRAIN COMMISSIONER DIVISION OF WATER AND WASTE SERVICES, Defendant/Cross-Defendant, and GOODRICH COUNTRY CLUB, INC., Defendant-Appellee.

No. 359732

Court of Appeals of Michigan

April 25, 2024

UNPUBLISHED

Genesee Circuit Court LC No. 14-103184-NZ Before: GADOLA, P.J., and PATEL and MALDONADO, JJ.

PER CURIAM.

Plaintiffs-appellants Terese Allen, Atlas Valley Golf and Country Club, Inc. Cynthia Beebe, Davison Country Club, Kenny Hubbard, Gail Hubbard, IMA Recreation Association, Tim Kleindl, April Kleindl, Julia Neville, John Pavlick, Caitlin Pavlick, Tracey Plummer, and Corey Robinson, appeal by right the circuit court's orders granting summary disposition pursuant to MCR 2.116(C)(7) (statute of limitations) with respect to the claims brought by plaintiffs Atlas Valley Golf and Country Club, Inc., Davison Country Club, and IMA Recreation Association (collectively, the business plaintiffs) against defendants, Village of Goodrich, Genesee County Drain Commissioner Division of Surface Water Management, and Goodrich Country Club, Inc.; granting summary disposition pursuant to MCR 2.116(C)(7) (governmental immunity) with respect to the claims brought by plaintiffs Allen, Beebe Kenny Hubbard, Gail Hubbard, Tim Kleindl, April Kleindl, Neville, John Pavlick, Caitlin Pavlick, Plummer, and Robinson (collectively, the individual plaintiffs) against the Village; granting summary disposition pursuant to MCR 2.116(C)(7) (governmental immunity) with respect to the claims brought by plaintiffs Allen, Beebe, Tim Kleindl, April Kleindl, Neville, John Pavlick, Caitlin Pavlick, and Plummer against the Drain Commissioner; and granting summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact) with respect to most of the plaintiffs' claims against defendant Goodrich Country Club.^[1] Later, the trial court separately granted summary disposition with respect to the claims of the Hubbards and Robinson against the Drain Commissioner under MCR 2.116(C)(7) (governmental immunity), and it denied plaintiffs' motion for reconsideration of the initial order granting summary disposition. We affirm in part, reverse in part, and remand for additional proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case involves the flooding of the properties along the Goodrich Millpond and Kearsley Creek, which are downstream of the millpond and into which the Watkins Wheelock Drain drains. The drain was built in the late 1800s and substantially rebuilt and altered between 1950 and 1951.

As early as 1994, the business plaintiffs were reporting excessive downstream water flow. In 1996, the Village's council resolved to petition the Drain Commission to improve the Watkins Wheelock Drain, but the Drain Commission discovered that the petition concerned a private drain over which the Commission lacked easements. In 2008, the Village adopted another petition for the Drain Commission to take over 110 feet of drain, but again, the drain was a private drain. Plaintiffs alleged that they suffered damage from storm water on the following dates: July 27 and 28, 2011; May 3 to 9, 2012; April 1 to 3, 2013; April 18 to 25, 2013; June 18, 2013; June 27 to 30, 2013; April 1 to 9, 2014; and July 7, 2014. Plaintiffs' individual claims differ, but each plaintiff experienced flooding on at least one of those dates.

Following discovery, the governmental defendants moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that plaintiffs had failed to establish elements of the sewage-disposal-system-event exception to governmental immunity, including that the defect was a substantial proximate cause of plaintiffs' flooding events. The Goodrich Country Club moved for summary disposition under MCR 2.116(C)(10), also asserting that plaintiffs could not establish that its actions had caused plaintiffs' flooding. Instead, the defendants argued that heavy rains on the days in question and other factors had caused the flooding. In response to defendants' causation arguments, plaintiffs relied on an engineering report and two affidavits of experts.

Although the parties offered a variety of other arguments, the trial court based its decision primarily on issues of governmental immunity and proximate cause. The court noted that MCL 600.5805(10) provided that the limitations period for injury to person or property was three years from the time of injury. It held that, because the business plaintiffs' claims began more than three years before the action was filed, the statute of limitations barred their claims.

The court then considered the application of the sewage-disposal-system-event exception to governmental immunity pursuant to the governmental tort liability act (GTLA), MCL 691.1401 et seq. The court opined that the existence of a defect did not, standing alone, demonstrate that the defect proximately caused plaintiffs' injuries. Considering the individual plaintiffs' claims against the Drain Commissioner, the trial court held that plaintiffs had failed to demonstrate a factual issue regarding whether the drain system was a substantial proximate cause of the flooding events. It noted that affidavits of plaintiffs' experts had been filed after the motions for summary disposition, did not address contributing factors to the case, and did not exclude other factors that could have contributed to the flooding. Considering plaintiffs' claims against the Goodrich Country Club, the court opined that "the expert opinion affidavits again falter." The affidavits did not exclude any of the numerous other hypothetical factors that could have contributed to plaintiffs' flooding problems^[2], and plaintiffs could not rely on multiple, competing theories of flooding.

Following several motions for summary disposition, the trial court ultimately dismissed the business plaintiffs' claims as barred by the statute of limitations; granted summary disposition on the individual plaintiffs' claims against the Drain Commissioner; dismissed the claims by all of the individual plaintiffs against the Village; and dismissed all of the individual plaintiffs' claims (except those of the Petes) against the Country Club.

II. ANALYSIS

A. STANDARDS OF REVIEW

A party is entitled to summary disposition when a claim is barred by the statute of limitations. MCR 2.116(C)(7). This Court reviews de novo whether a statute of limitations bars a claim. Scherer v Hellstrom, 270 Mich.App. 458, 461; 716 N.W.2d 307 (2006). Additionally, "[a] defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff's claims are barred because of governmental immunity." Pew v Mich. State Univ, 307 Mich.App. 328, 331-332, 859 N.W.2d 246 (2014).

When considering a motion under MCR 2.116(C)(7), the court must accept factual pleadings as true unless other evidence contradicts them. Dextrom v Wexford Co, 287 Mich.App. 406, 428; 789 N.W.2d 211 (2010). It must consider the affidavits, pleadings, depositions, and other documentary evidence and determine whether a genuine issue of material fact exists. Id. at 429. If there are no questions of fact, whether the claim is barred is a matter of law, but "if a question of fact exists as to the extent that factual development could provide a basis for recovery, dismissal is inappropriate." Id. at 429.

B. STATUTE OF LIMITATIONS

As an initial matter, we note that the trial court misapplied the continuing-wrongs doctrine to the claims of the business plaintiffs.^[3] As recently discussed in Fraser Twp v Haney, 509 Mich. 18, 28-29; 983 N.W.2d 309 (2022), "[a] plaintiff is free to bring a new action each time a defendant commits a new violation." Id. at 28-29. The continuing-wrongs doctrine does not prevent a plaintiff from bringing an action for a claim that accrued during the limitations period, even if a plaintiff did not bring an action at the time of a previous injury. Id. at 29. Because the business plaintiffs alleged that they were damaged by the flooding in the three-year period before the plaintiffs filed their complaint, even though they had noticed the flooding many years earlier, the court erred by granting summary disposition of the business plaintiffs' claims during the limitations period. However, this Court may affirm when the lower court reaches the correct result for the wrong reason. Gleason v Dep't of Transp, 256 Mich.App. 1, 3; 662 N.W.2d 822 (2003). Therefore, we will examine the court's other bases for summary disposition as applied to all plaintiffs.

C. GOVERNMENT DEFENDANTS

Plaintiffs argue that they pleaded in avoidance of governmental immunity regarding the Drain Commissioner and Village because they established each element of the sewage-disposal-system-event exception, including proximate cause. We agree.

The GTLA provides "broad immunity from tort liability to governmental agencies whenever they are engaged in the exercise or discharge of a governmental function[.]" Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 N.W.2d 641 (1984). Governmental functions are those that are expressly or impliedly either mandated or authorized by law. Moraccini v Sterling Hts, 296 Mich.App. 387, 392; 822 N.W.2d 799 (2012). A plaintiff may only sue a...