
    DOE v RACETTE
    Docket No. 322150.
    Submitted October 14, 2015, at Lansing.
    Decided October 27, 2015, at 9:15 a.m.
    John Doe brought a tort action in the Ingham Circuit Court in 2012 that included claims of assault and battery, intentional infliction of emotional distress, and false imprisonment against Wendall A. Racette, alleging that Racette had sexually abused him while serving as his childhood dentist. Plaintiff claimed that the abuse had occurred over five years, beginning in 1995 when he was five years old, and that defendant had threatened to kill him and rape his sisters if he disclosed the abuse. The court, James S. Jamo, J., granted defendant’s motion for summary disposition under MCR 2.116(C)(7), ruling that the applicable limitations periods had elapsed and that equitable estoppel did not apply. Plaintiff appealed.
    The Court of Appeals held:
    
    The trial court did not err by declining to apply the doctrine of equitable estoppel and granting defendant’s motion for summary disposition under MCR 2.116(C)(7), although it erred in its reasoning. Equitable estoppel is a judicially created exception to the general rule that statutes of limitation run without interruption. In order to invoke the equitable estoppel doctrine, a plaintiff must generally establish that (1) the defendant’s acts or representations induced plaintiff to believe that the limitations period clause would not be enforced, (2) the plaintiff justifiably relied on this belief, and (3) the plaintiff was prejudiced as a result of relying on the belief that the clause would not be enforced. In this case, the trial court erred by ruling that equitable estoppel did not apply because the purpose of defendant’s alleged threats were not clearly designed to induce plaintiff from bringing his claim within the limitations period. If a defendant threatens to murder a victim should he or she disclose instances of sexual abuse, that conduct is clearly intentionally designed to induce the plaintiff to refrain from taking any action against the defendant, including bringing an action within the period fixed by statute. Accordingly, a threat to murder a plaintiff and harm his family should he or she disclose instances of sexual abuse can establish the first element of equitable estop-pel. However, plaintiff was also required to show that he acted within a reasonable time to bring suit after the coercive effect of the threat had ended. In this case, plaintiff disclosed the abuse to the police in December of 2010 and testified at defendant’s criminal proceedings in 2011, which demonstrated that his fears no longer constrained him to remain silent; however, he did not bring this action until December of 2012. Following his public disclosure, plaintiff had a primary obligation to secure prompt resolution of his claim in the courts, and his failure to do so precluded application of the doctrine of equitable estoppel.
    Affirmed.
    MURRAY, J., concurring, agreed that defendant could not be equitably estopped from asserting the statute of limitations because plaintiff did not bring suit within a reasonable amount of time after the coercive effect of defendant’s alleged threat had ended. However, because that conclusion alone was sufficient to reject plaintiff’s invocation of equitable estoppel, Judge Murray would not have engaged in any discussion of whether a threat of murder could be sufficient. He further noted that it was unclear whether plaintiff had established the first element of equitable estoppel.
    Limitation or Actions — Equitable Estoppel — Threats.
    In order to invoke the equitable estoppel doctrine to avoid the application of a statutory limitation period, a plaintiff generally must establish that (1) the defendant’s acts or representations induced plaintiff to believe that the limitations period clause would not be enforced, (2) the plaintiff justifiably relied on this belief, and (3) the plaintiff was prejudiced as a result of relying on the belief that the clause would not be enforced; a threat to murder a plaintiff and harm the plaintiff’s family if the plaintiff discloses instances of sexual abuse can establish the first element of equitable estoppel if the plaintiff brought suit within a reasonable time after the coercive effect of the threat ended.
    
      Levine Benjamin, PC (by Greg M. Liepshutz), and Daryl Royal for plaintiff.
    
      Farhat & Story, PC (by Linda L. Widener), for defendant.
    Before: M. J. KELLY, P.J., and MURRAY and SHAPIRO, JJ.
   PER CURIAM.

Plaintiff appeals as of right the trial court’s ruling granting defendant’s motion for summary disposition under MCR 2.116(C)(7) (claim barred by the statute of limitations) in this action involving various torts stemming from alleged incidents of sexual abuse. We affirm.

In December 2012, plaintiff filed a complaint against defendant, claiming assault and battery, intentional infliction of emotional distress (IIED), and false imprisonment. He alleged that, starting in 1995 when he was just five years old, his parents brought him to defendant’s dentistry practice for dental services. He alleged that, during the next five years, defendant subjected him to various forms of sexual abuse, which he did not disclose because defendant threatened to kill him and rape his sisters if he told anyone about the abuse.

In response, defendant filed a motion for summary disposition under MCR 2.116(C)(7), arguing that plaintiffs claims were time-barred because plaintiff waited more than 12 years after the alleged abuse to file a lawsuit. Plaintiff conceded that the applicable limitations periods had expired. See MCL 600.5805(2) (claims for false imprisonment and assault and battery are governed by a two-year limitations period), MCL 600.5805(10) (claims for IIED are governed by a three-year limitations period), and MCL 600.5851(1) (if a claim accrues when a plaintiff is a minor the limitations period is extended for one year after the disability is removed). Nevertheless, plaintiff argued that defendant should be equitably estopped from raising the statute of limitations as a defense because his threats to kill plaintiff and harm his sisters prevented plaintiff from bringing his claim within the limitations periods. The trial court, however, ruled that the applicable limitations periods had elapsed and that equitable estoppel did not apply. This appeal followed.

A trial court’s ruling on a motion for summary disposition brought under MCR, 2.116(C)(7) is reviewed de novo to determine if the moving party is entitled to judgment as a matter of law. Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). “If a party supports a motion under MCR 2.116(C)(7) by submitting affidavits, depositions, admissions, or other documentary evidence, those materials must be considered” unless their substance and content is inadmissible as evidence. Pusakulich v City of Ironwood, 247 Mich App 80, 82; 635 NW2d 323 (2001), citing MCR 2.116(G)(5). “[T]he contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant.” Pusakulich, 247 Mich App at 82.

Equitable estoppel is a judicially created “exception to the general rule which provides that statutes of limitation run without interruption[.]” Lothian v Detroit, 414 Mich 160, 176; 324 NW2d 9 (1982). “It is essentially a doctrine of waiver that extends the applicable period for filing a lawsuit by precluding the defendant from raising the statute of limitations as a bar.” Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263, 270; 562 NW2d 648 (1997). “[A]bsent intentional or negligent conduct designed to induce a plaintiff to refrain from bringing a timely action,” Michigan courts have been “reluctant to recognize an estoppel [.]” Id. (emphasis omitted). Such equitable power “has traditionally been reserved for ‘unusual circumstances’ such as fraud or mutual mistake” because a “court’s equitable power is not an unrestricted license for the court to engage in wholesale policymaking[.]” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590; 702 NW2d 539 (2005). In the past, we have typically applied equitable estoppel in cases in which the defendant induced the plaintiff to believe the limitations period would not be enforced. See McDonald v Farm Bureau Ins Co, 480 Mich 191, 204-205; 747 NW2d 811 (2008) (holding that in order to invoke the equitable estoppel doctrine, the plaintiff must generally establish that “(1) defendant’s acts or representations induced plaintiff to believe that the limitations period clause would not be enforced, (2) plaintiff justifiably relied on this belief, and (3) she was prejudiced as a result of her reliance on her belief that the clause would not be enforced”). In this case, defendant correctly points out that there is nothing on the record indicating that his alleged threat to kill plaintiff and harm his sisters induced plaintiff to believe the limitations periods would not be enforced. However, there are no Michigan cases addressing whether a threat of murder can be grounds for invoking the equitable estoppel doctrine. Therefore, it is an issue of first impression whether a defendant can be equitably estopped from raising the statute of limitations as a bar when the plaintiff failed to file suit within the limitations periods because of the defendant’s threats to kill the plaintiff and harm his family if he disclosed instances of sexual abuse.

In this case, the trial court ruled that equitable estoppel could not be extended to this situation because the purpose of defendant’s alleged threats was not clearly to induce plaintiff from bringing his claim within the limitations periods. We disagree. If a defendant threatens to murder a victim should he or she disclose instances of sexual abuse, the threat necessarily encompasses all forms of disclosure, including disclosure in the form of a timely filed lawsuit. In such circumstances, the defendant’s conduct is clearly intentionally designed to induce the plaintiff to refrain from taking any action against the defendant, including “bringing action within the period fixed by statute.” Lothian, 414 Mich at 177 (quotation marks and citation omitted); see also Cincinnati Ins Co, 454 Mich at 270. Accordingly, a threat to murder a plaintiff and harm his family should he or she disclose instances of sexual abuse can establish the first element of equitable estoppel.

However, in addition to showing the existence of a threat, plaintiff must show that he or she acted within a reasonable time to bring suit after the coercive effect of the threat had ended. See McDonald, 480 Mich at 205 (holding that equitable estoppel did not apply when there was “no evidence that plaintiff relied on anything defendant did or said” when she delayed bringing suit within the limitations period); see also Lothian, 414 Mich at 178-179 (holding that equitable estoppel did not apply when the plaintiffs failure to bring suit within the limitations period was not because of the defendant’s actions). In this case, it is undisputed that plaintiff disclosed the abuse to the police in December 2010, when he was almost 21 years old. In February 2011, he testified at the preliminary examination in defendant’s criminal case. In November 2011, he testified at defendant’s first trial, which ended in a hung jury. In August 2012, he testified at defendant’s second trial, which ended with his conviction on multiple counts of criminal sexual conduct. However, it was not until Decern-ber 2012—about two years after he first disclosed the abuse to the police—that defendant opted to file the present suit.

While plaintiffs failure to bring suit during the predisclosure period may have been the result of the fear engendered by defendant’s threats, the undisputed evidence shows that plaintiff continued to delay filing suit well after the grounds for such fear had ended with the disclosure to the police. Alternatively put, plaintiffs disclosure to the police in December 2010 demonstrates that his fears no longer constrained him to remain silent and so estoppel based upon that fear cannot have remained effective until December 2012. Following his public disclosure, plaintiff “had a primary obligation to secure prompt resolution of his claim in the courts.” Lothian, 414 Mich at 179. His failure to do so precludes application of the doctrine of equitable estoppel.

Affirmed.

M. J. Kelly, P.J., and Shapiro, J., concurred.

MURRAY, J.

(concurring).

I concur in the majority opinion’s decision to affirm the trial court’s order granting defendant’s motion for summary disposition on the basis of the statute of limitations. MCR 2.116(C)(7). More specifically, I concur in the majority opinion’s holding that defendant cannot be equitably estopped from asserting the statute of limitations because under the undisputed facts, plaintiff did not bring suit within a reasonable amount of time after the coercive effect of defendant’s alleged threat ended. Because that conclusion is alone sufficient to reject plaintiffs attempt to invoke equitable estoppel, it is unnecessary to engage in ány discussion as to whether a threat of murder can alone be sufficient to meet the first prong of the test for equitable estoppel as articulated in McDonald v Farm Bureau Ins Co, 480 Mich 191, 204-205; 747 NW2d 811 (2008).

In addition, even if it were a proper subject of inquiry, it is not clear that plaintiff has established the first prong of equitable estoppel. As defendant argues and the majority opinion recognizes, there is nothing in the record indicating that defendant’s alleged threat to kill plaintiff or harm his sisters while they were patients of defendant, induced plaintiff to believe that the limitations periods would not be enforced. According to McDonald, that is one of the necessary proofs. Id. And outside the insurance context of McDonald, our Court has recently stated that the first element requires proof of “ ‘a false representation or concealment of a material fact[.]’ ” Genesee Co Drain Comm’r v Genesee Co, 309 Mich App 317, 333; 869 NW2d 635 (2015), quoting Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263, 270; 562 NW2d 648 (1997). A threat, even a threat of murder, is not a false representation, nor does it involve the concealment of a material fact. See, e.g., Hollander v Brown, 457 F3d 688, 694-695 (CA 7, 2006) (holding under a broader Illinois equitable estoppel doctrine that a threat of murder is neither a misrepresentation nor a concealment of evidence).

For these reasons, plaintiffs failure to file suit within a reasonable time after the coercive effect of the alleged threat was made requires us to reject plaintiffs attempted invocation of equitable estoppel and to affirm the trial court’s order of dismissal. 
      
       Plaintiff disclosed the abuse to the police in December 2010. In 2012, defendant was convicted of 5 counts of criminal sexual conduct in the first degree, MCL 750.520b(l)(a), and 10 counts of criminal sexual conduct in the second degree, MCL 750.520c(l)(a). On appeal, this Court reversed his convictions and remanded for a new trial. People v Racette, unpublished opinion per curiam of the Court of Appeals, issued September 1, 2015 (Docket No. 314895).
     