Sunrise Resort Ass'n, Inc. v. Cheboygan Cnty. Rd. Comm'n

339 Mich.App. 440

983 N.W.2d 436

SUNRISE RESORT ASSOCIATION, INC., Gregory P. Somers, Melissa L. Somers, and Karl Berakovich, Plaintiffs-Appellants,

v.CHEBOYGAN COUNTY ROAD COMMISSION, Defendant-Appellee.

No. 354540

Court of Appeals of Michigan.

Submitted October 13, 2021, at Grand Rapids.

Decided December 2, 2021, 9:05 a.m.

Molosky & Co (by Jennifer J. Schafer, Petoskey) for plaintiffs.

Henn Lesperance PLC (by William L. Henn, Benjamin M. Dost, and Andrea S. Nester) for defendant.

Before: Ronayne Krause, P.J., and Cameron and Rick, JJ.

Per Curiam.

In this action alleging real property damages as a result of modifications to a storm water drainage system, plaintiffs, Sunrise Resort Association, Inc. (Sunrise), Gregory P. Somers, Melissa L. Somers, and Karl Berakovich, appeal as of right the trial court's order granting summary disposition under MCR 2116(C)(7) (statute of limitations) in favor of defendant, Cheboygan County Road Commission. On appeal, plaintiffs argue that the trial court erred by granting defendant's motion for summary disposition because (1) their claim under the sewage-disposal-system-event exception to governmental immunity under the governmental tort liability act (GTLA), MCL 691.1401 et seq. , was not barred by the statute of limitations and (2) their request for injunctive relief was not untimely and was an available remedy. Pertinent to this appeal is the question regarding when a claim accrues under the sewage-disposal-system-event exception, MCL 691.1416 through MCL 691.1419, which is an issue of first impression involving the interpretation of statutory provisions. MCR 7.215(B)(2). We reverse and remand to the trial court for further proceedings.

I. BACKGROUND

This case involves plaintiffs’ claim that defendant made modifications to a storm water drainage system that resulted in a backup and overflow and caused damage to their real property.¹

Plaintiffs are owners of real property located on West Burt Lake Road in Cheboygan County. Defendant operates a public storm water drainage system in Cheboygan County, which diverts drainage through plaintiffs’ properties to Burt Lake by way of ditches and culverts.

In 2013, a bicycle trail was constructed on the west side of West Burt Lake Road, which necessitated various modifications to the drainage system. In 2014, the bicycle path was washed out and defendant made further modifications to the drainage system. In early 2016, Sunrise warned defendant that modifications made in 2015 had caused minor damage to plaintiffs and that more severe damage would likely result. On May 4, 2018, plaintiffs’ properties sustained significant damage caused by an overflow and backup of the storm water drainage system.

On February 20, 2020, plaintiffs filed the instant action against defendant and subsequently filed an amended complaint on April 27, 2020. Their complaint alleged that minor damage first occurred in 2015 when the modifications were made and that significant damage occurred on May 4, 2018, as the result of an overflow and backup. Plaintiffs sought monetary damages under the sewage-disposal-system-event exception to governmental immunity, as well as injunctive relief to abate the ongoing trespass or nuisance.

Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that plaintiffs’ sewage-disposal-system-event-exception claim was barred by the applicable three-year statutory period of limitations and by plaintiffs’ failure to provide timely notice of their claim, as required by MCL 691.1419(1). Defendant also argued that injunctive relief was not available under MCL 691.1417, that defendant had not abused its discretion because it had the authority to install and maintain the roads and culvert near plaintiffs’ properties, and that therefore defendant's discretionary actions were not subject to judicial review. Plaintiffs responded that their claim was not time-barred because the statutory limitations period did not begin to run until the 2018 "event" and that the minor damage that occurred in 2015 was not the basis of any claim. Plaintiffs also asserted that injunctive relief was not barred by MCL 691.1417 because their request for injunctive relief did not involve physical injuries. Lastly, plaintiffs asserted that they were not requesting that the court interfere with defendant's discretionary authority.

Following a hearing on the motion, the trial court granted summary disposition under MCR 2.116(C)(7) in favor of defendant. The trial court ruled that plaintiffs’ claim accrued in 2015 and, therefore, was not timely. The trial court further ruled that an injunction was not a separate cause of action and could not be premised on untimely claims. It also concluded that injunctive relief was not permitted under MCL 691.1417(2).

This appeal followed.

II. STANDARDS OF REVIEW

We review de novo a trial court's decision to grant summary disposition, "including whether a cause of action is barred by a statute of limitations[.]" Sabbagh v. Hamilton Psychological Servs., PLC , 329 Mich.App. 324, 335, 941 N.W.2d 685 (2019). Under MCR 2.116(C)(7), "all well-pleaded allegations must be both accepted as true and construed in the light most favorable to the nonmoving party." Id. at 335-336, 941 N.W.2d 685. Additionally, the court "must consider all of the documentary evidence submitted by the parties ...." Id. at 336, 941 N.W.2d 685.

Whether governmental immunity applies is a question of law that is also reviewed de novo. Genesee Co. Drain Comm'r v. Genesee Co. , 504 Mich. 410, 416-417, 934 N.W.2d 805 (2019). "De novo review means that we review the legal issue independently, without required deference to the courts below." Id. at 417, 934 N.W.2d 805. Likewise, questions of statutory interpretation are reviewed de novo. Sabbagh , 329 Mich.App. at 335, 941 N.W.2d 685.

The rules of statutory interpretation are well established. Our primary goal when interpreting a statute is to discern the Legislature's intent, and the specific language used is the most reliable evidence of its intent. When the language of a statute is unambiguous, no judicial construction is permitted and the statute must be enforced as written in accordance with the plain and ordinary meaning of its words. [ Pike v. Northern Mich. Univ. , 327 Mich.App. 683, 696, 935 N.W.2d 86 (2019) (citation omitted).]

III. STATUTE OF LIMITATIONS

Plaintiffs argue that the trial court erred by granting summary disposition in favor of defendant on the basis that their claim under the sewage-disposal-system-event exception to governmental immunity is barred by the statute of limitations. We agree.

"The [GTLA] generally provides immunity from tort liability to a ‘governmental agency’ if the agency ‘is engaged in the exercise or discharge of a governmental function.’ " Id. at 691, 935 N.W.2d 86, quoting MCL 691.1407(1). However, "[t]here are several exceptions to the broad grant of immunity ...." Id . "The scope of governmental immunity is construed broadly, while exceptions to it are construed narrowly." Linton v. Arenac Co. Rd. Comm. , 273 Mich.App. 107, 112, 729 N.W.2d 883 (2006).

The sewage-disposal-system-event exception is set forth at MCL 691.1416 through MCL 691.1419. Cannon Twp. v. Rockford Pub. Sch. , 311 Mich.App. 403, 415, 875 N.W.2d 242 (2015). "The Legislature, in adopting MCL 691.1416 through MCL 691.1419, intended to provide limited relief to persons who suffer damages as a result of a sewage disposal system event." Willett v. Waterford Charter Twp. , 271 Mich.App. 38, 46, 718 N.W.2d 386 (2006) (cleaned up). MCL 691.1417(2) provides:

A governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event and the governmental agency is an appropriate governmental agency. [ MCL 691.1416 ] to [ MCL 691.1419 ] abrogate common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system and provide the sole remedy for obtaining any form of relief for damages or physical injuries caused by a sewage disposal system event regardless of the legal theory.

As this Court explained in Willett , 271 Mich.App. at 48, 718 N.W.2d 386 :

The Legislature promulgated MCL 691.1416 through MCL 691.1419 to afford property owners, individuals, and governmental agencies greater efficiency, certainty, and consistency in the provision of relief for damages caused by a sewage disposal system event. Under MCL 691.1417(2), a governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event and the governmental agency is an appropriate governmental agency. A "sewage disposal system event" is defined, in pertinent part, as "the overflow or backup of a sewage disposal system onto real property." MCL 691.1416(k). An "appropriate governmental agency" is defined as "a governmental agency that, at the time of [a] sewage disposal system event, owned or operated, or directly or indirectly discharged into, the portion of the sewage disposal system that allegedly caused damage ...." MCL 691.1416(b). [Cleaned up.]

To avoid governmental immunity under the sewage-disposal-system-event exception, a claimant must establish the following:

(1) that the claimant suffered property damage or physical injuries caused by a sewage disposal system event;

(2) that the governmental agency against which the claim is made is "an appropriate governmental agency," which is defined as "a governmental agency that, at the time of a sewage disposal system event, owned or operated, or directly or indirectly discharged into, the portion of the sewage disposal system that allegedly caused damage or physical injury";

(3) that the sewage disposal system had a defect;

(4) that the governmental agency knew, or in the exercise of reasonable diligence should have known, about the defect;

(5) that the governmental agency, having the legal authority

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