
    TOWNSHIP OF FRASER, Plaintiff-Appellee, v. Harvey HANEY and Ruth Ann Haney, Defendants-Appellants.
    No. 337842
    Court of Appeals of Michigan.
    Submitted December 12, 2018, at Lansing Decided December 20, 2018 Approved for Publication January 17, 2019, 9:00 a.m.
    Birchler, Fitzhugh, Purtell, & Brissette, PLC (by Mark Brissette ) for Fraser Township.
    Outside Legal Counsel, PLC (by Phillip L. Ellison ) for Harvey Haney and Ruth Ann Haney.
    Bauckham, Sparks, Thall, Seeber & Kaufman, PC (by Robert E. Thall and T. Seth Koches) for the Michigan Townships Association.
    Before: Swartzle, P.J., and Sawyer and Ronayne Krause, JJ.
   Per Curiam.

Plaintiff filed this suit seeking injunctive relief to abate a public nuisance. Plaintiff claimed that defendants' piggery violated the zoning ordinance applicable to defendants' property (the land was zoned as commercial and not agricultural). Defendants filed a motion for summary disposition under MCR 2.116(C)(7) (claim barred by statute of limitations). The trial court denied defendants' motion, holding that this was an action in rem and that therefore the statute of limitations did not apply. Defendants appeal by leave granted. We reverse the decision of the trial court and remand the case in order to allow defendants to amend their responsive pleading to include the statute of limitations as an affirmative defense.

I. FACTS

On May 3, 2016, plaintiff filed this action against defendants, alleging that defendants were raising approximately 20 domestic hogs on their property in violation of plaintiff's zoning laws and that defendants were creating a nuisance due to the stench and flies drawn by deer and hog waste. Defendant Harvey Haney testified that privately owned deer or elk were no longer on the subject property, but he admitted that he began raising hogs on the property in 2006. Plaintiff offered no evidence that defendants continued to bring new hogs onto the property after 2006 or that defendants had actually begun to raise hogs on the property after 2006. Plaintiff sought an injunction precluding defendants from continuing to raise hogs (or other animals that would violate plaintiff's zoning ordinance) on the subject property.

Defendants filed a motion for summary disposition, arguing that plaintiff's claim was time-barred by the six-year general period of limitations set forth in MCL 600.5813. The trial court denied defendants' motion, reasoning that the statute of limitations did not bar plaintiff's complaint because the case constituted an action in rem.

II. STANDARD OF REVIEW

This Court reviews de novo motions for summary disposition under MCR 2.116(C)(7), the applicability of a statute of limitations to a cause of action, and questions of statutory interpretation. Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 386, 738 N.W.2d 664 (2007).

III. ANALYSIS

A motion for summary disposition under MCR 2.116(C)(7) may be raised on the ground that a claim is barred by the statute of limitations. In support of a motion under Subrule (C)(7), a party may provide affidavits, pleadings, depositions, admissions, and other documentary evidence. MCR 2.116(G)(5). Unlike a motion brought under Subrule (C)(10), "a movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material." Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). However, the substance of this material, if provided, must be admissible in evidence. Id . When reviewing motions under Subrule (C)(7),

this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate. [ Dextrom v. Wexford Co. , 287 Mich.App. 406, 428-429, 789 N.W.2d 211 (2010).]

"[O]nly factual allegations, not legal conclusions, are to be taken as true under MCR 2.116(C)(7) ...." Davis v. City of Detroit , 269 Mich.App. 376, 379 n. 1, 711 N.W.2d 462 (2006).

A. WAIVER OF THE STATUTE-OF-LIMITATIONS DEFENSE

Plaintiff argues that defendants cannot prevail on any statute-of-limitations defense because defendants failed to assert a limitations-period defense in their first responsive pleading. However, this case presents the unusual situation in which the trial court made an express holding with respect to the applicability of the asserted statute-of-limitations defense notwithstanding defendants' untimely invocation. The parties briefed and presented their arguments concerning the applicability of the statute of limitations to plaintiff's claim, though plaintiff did not argue until after this appeal was filed that defendants failed to properly assert the statute-of-limitations defense in their responsive pleading. Under these circumstances, we hold that the trial court tried the merits of defendants' statute-of-limitations defense with plaintiff's implied consent. The issue may therefore be treated as if it had been raised in defendants' pleadings, and it is appropriate to remand the case to allow defendants to move to amend their responsive pleading accordingly.

" '[T]he running of the statute of limitations is an affirmative defense.' " Dell v. Citizens Ins. Co. of America , 312 Mich.App. 734, 752, 880 N.W.2d 280 (2015) (citation omitted). "Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118." MCR 2.111(F)(3). Pursuant to MCR 2.118(C)(1),

[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment.

In order for an issue to be "tried" for purposes of MCR 2.118(C)(1), it must be analyzed on its merits by the trial court. Amburgey v. Sauder , 238 Mich.App. 228, 247-248, 605 N.W.2d 84 (1999). The trial court in this case clearly addressed the merits of defendants' untimely assertion of their statute-of-limitations defense, and the parties were given ample opportunity to brief and argue the issue. The issue of the statute of limitations' applicability was therefore "tried." Moreover, a party may give implied consent to the adjudication of an issue by failing to object to the issue before the trial court. Zdrojewski v. Murphy , 254 Mich.App. 50, 61, 657 N.W.2d 721 (2002) ; Grebner v. Clinton Charter Twp. , 216 Mich.App. 736, 744, 550 N.W.2d 265 (1996). In this case, plaintiff did not object until after this appeal was filed to defendants' failure to allege a statute-of-limitations defense in their responsive pleading. Plaintiff briefed arguments against the applicability of the statute of limitations and presented its case to the trial court. Ergo, plaintiff impliedly consented to the adjudication of the issue. See Zdrojewski , 254 Mich.App. at 61, 657 N.W.2d 721.

MCR 2.118(C)(1) is "liberal and permissive .... The only requirement is that the party seeking amendment move to have the court amend the pleadings ...." Zdrojewski , 254 Mich.App. at 61, 657 N.W.2d 721. In this case, defendants have not moved to amend their affirmative defenses. Typically, this would constitute a binding waiver of the defense. Geisland v. Csutoras , 78 Mich.App. 624, 630, 261 N.W.2d 537 (1977). Importantly, however, the text of MCR 2.118(C)(1) expressly allows for motions to amend the pleadings to be made by a party "at any time, even after judgment ." (Emphasis added.) This Court, in Geisland , 78 Mich.App. at 630, 261 N.W.2d 537, held that when one defendant properly asserted a statute-of-limitations defense, the plaintiff was not misled or prejudiced when the other defendants asserted the same defense, and it was appropriate to allow the other defendants to seek leave to amend their answers to include the affirmative defense on remand. This Court in Jesperson v. Auto Club Ins. Ass'n , 306 Mich.App. 632, 647, 858 N.W.2d 105 (2014), rev'd on other grounds 499 Mich. 29, 878 N.W.2d 799 (2016), held that when the trial court could have granted a defendant leave to amend its pleading to include a statute-of-limitations defense not previously asserted and the defense would have barred the plaintiff's claim, the Court's interest in judicial efficiency enabled the Court to forgo remand and simply determine that the statute-of-limitations defense was not waived. Id . Consequently, it does not matter that defendants have so far failed to move to amend their affirmative defenses, as long as a proper amendment ultimately occurs. See id .

Notably, if defendants had moved to amend their responsive pleading, the trial court would have been within its discretion to grant such a motion. The Jesperson Court stated that "leave to amend pleadings should be freely granted to a nonprevailing party at summary disposition, unless amendment would be futile or otherwise unjustified." Id . See also MCR 2.118(A)(2). Aside from futility, other reasons to disallow leave to amend include "undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, [and] undue prejudice to the opposing party by virtue of allowance of the amendment ...." Amburgey , 238 Mich.App. at 247, 605 N.W.2d 84. Critically,

[d]elay, alone, does not warrant denial of a motion to amend. However, a motion may be properly denied if the delay was in bad faith or if the opposing party suffered actual prejudice as a result. Prejudice to a defendant that will justify denial of leave to amend is the prejudice that arises when the amendment would prevent the defendant from having a fair trial; the prejudice must stem from the fact that the new allegations are offered late and not from the fact that they might cause the defendant to lose on the merits. [ Id . (citations omitted).]

Defendants' assertion of the statute-of-limitations defense would not be futile. Further, because plaintiff was given the opportunity to brief and argue before the trial court its position against defendants' assertion of the statute of limitations, it can hardly be said that plaintiff would suffer prejudice were we to allow defendants to amend their responsive pleading. "The mere fact that an amendment might cause a party to lose on the merits is not sufficient to establish prejudice." Ostroth v. Warren Regency, G.P., LLC , 263 Mich.App. 1, 5, 687 N.W.2d 309 (2004).

This Court's decision in Ostroth is perhaps most instructive. In that case, this Court considered whether a trial court erred by allowing a defendant to amend its affirmative defenses to include the statute of limitations. Id . The defendant failed to assert the defense in its responsive pleading and did not move to amend its affirmative defenses to include the defense until after it was raised in the defendant's motion for summary disposition. Id . Because the defendant's untimely action was not the result of bad faith or undue delay and did not prejudice the plaintiff's ability to respond to the issue, this Court affirmed the trial court's grant of the defendant's motion to amend. Id . Accordingly, because there is no indication that defendants in this case asserted the statute-of-limitations defense in bad faith, the delay in filing a motion to amend defendants' affirmative defenses would not be sufficient to warrant denying such an amendment. See id . ; Amburgey , 238 Mich.App. at 247, 605 N.W.2d 84.

B. THE APPLICABLE PERIOD OF LIMITATIONS

Having determined that defendants' attempted assertion of the statute-of-limitations defense is proper, it becomes necessary to determine the period of limitations applicable to plaintiff's claim. Plaintiff's claim is for the abatement of a public nuisance. In Dep't of Environmental Quality v. Waterous Co. , 279 Mich.App. 346, 383, 760 N.W.2d 856 (2008), this Court held that a claim for the abatement of a public nuisance filed by a governmental entity seeking injunctive relief was subject to the six-year general period of limitations under MCL 600.5813. Ergo, the applicable period of limitations in this case is six years. Under MCL 600.5827, "the period of limitations runs from the time the claim accrues." Because there is no statutory provision holding otherwise, this claim "accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." Id . Plaintiff's suit is for the abatement of a public nuisance that stemmed from the piggery kept on the subject property in violation of a local ordinance. Thus, the wrong alleged for purposes of accrual occurred when defendants first began to keep hogs on the subject property, regardless of when the wrong began to result in recoverable damage. Defendants presented undisputed evidence that they had kept hogs on the property since 2006. Plaintiff filed this suit in 2016, and therefore plaintiff's case was time-barred. See MCL 600.5813.

Importantly, the accrual of plaintiff's claim is also not subject to tolling simply because plaintiff may have been unaware that defendants were keeping pigs on the subject property in violation of plaintiff's ordinance. The Michigan Supreme Court, in Trentadue , 479 Mich. at 391-392, 738 N.W.2d 664, held that the common-law discovery rule was not available as a means of tolling the accrual period prescribed by MCL 600.5827. What is relevant, then, is not when plaintiff learned of defendants' violation, but when the violation first took place. 738 N.W.2d 664.

Plaintiff additionally argues that each day that defendants have continued to keep pigs on the property constitutes a separate violation for which the accrual period begins anew. The Fraser Code of Ordinances, § 1-10(a), codifies this assertion by stating that "[e]ach act of violation [of the code] and every day upon which any such violation shall occur shall constitute a separate offense." However, this Court has "completely and retroactively abrogated" the continuing-wrongs doctrine in Michigan, including in nuisance cases. Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club , 283 Mich.App. 264, 288, 769 N.W.2d 234 (2009) (holding that the Michigan Supreme Court's decision in Garg v. Macomb Co. Community Mental Health Servs. , 472 Mich. 263; 696 N.W.2d 646 (2005), amended 473 Mich. 1205, 699 N.W.2d 697 (2005), and its progeny rendered the common-law continuing-wrongs doctrine inapplicable in all cases within the state). Further, neither party presented evidence suggesting that defendants were adding new swine to the subject property. Therefore, no new wrongs established a newly accrued cause of action that could salvage plaintiff's argument. Accordingly, plaintiff's contention in this regard is meritless.

Plaintiff next argues that its claim requesting the abatement of a public nuisance is an action in rem and, therefore, the six-year period of limitations is not applicable. This Court, in Detroit v. 19675 Hasse , 258 Mich.App. 438, 448, 671 N.W.2d 150 (2003), outlined the distinction between actions in personam and actions in rem:

[A]ctions in personam differ from actions in rem in that actions or proceedings in personam are directed against a specific person, and seek the recovery of a personal judgment, while actions or proceedings in rem are directed against the thing or property itself, the object of which is to subject it directly to the power of the state, to establish the status or condition thereof, or determine its disposition, and procure a judgment which shall be binding and conclusive against the world. The distinguishing characteristics of an action in rem is [sic] its local rather than transitory nature, and its power to adjudicate the rights of all persons in the thing. [Quotation marks and citation omitted; alterations in original.]

No Michigan court has ever held that a claim seeking the abatement of a public nuisance constitutes an action in rem. This is not an action against the subject property itself to determine its fate. Rather, it is an action seeking injunctive relief against specific, natural persons to force those persons-and only those persons-to come into compliance with a local zoning ordinance. Ergo, plaintiff's claim is an action in personam subject to the statute of limitations. See id .

Plaintiff next argues that if statutes of limitations apply to actions for the abatement of a public nuisance arising from the violation of a local zoning ordinance, this Court would have stated as much in Jerome Twp. v. Melchi , 184 Mich.App. 228, 457 N.W.2d 52 (1990). The fact that a court does not discuss a potentially relevant argument in a written opinion does not bear on the merit of the argument. As previously discussed, that a claim is barred by the statute of limitations is an affirmative defense that must be raised in a defendant's responsive pleading. MCR 2.111(F)(3)(a). It is entirely possible that the statute-of-limitations was simply not raised before the trial court in Jerome Twp. , or that the issue was not pursued on appeal. In either situation, the statute-of-limitations defense-though it may have been meritorious or, at least, applicable-would not have been analyzed by this Court. Plaintiff cannot prevail based on the fact that an argument was not raised in another case, especially when it is unclear whether such an argument had any bearing on its outcome.

Defendants also contend that the trial court improperly relied on 19675 Hasse , 258 Mich.App. 438, 671 N.W.2d 150, to apply the doctrine of quod nullum tempus occurrit regi against the six-year period of limitations. As an initial note, the trial court did not appear to rely on this doctrine in any meaningful way when outlining its reasons for ruling against defendants. Regardless, 19675 Hasse is the only published decision of any Michigan court to discuss this doctrine. It merely stands for the notion that the sovereign is exempt from the operation of statutes of limitations absent express statutory authority stating otherwise. Id . at 445-446, 671 N.W.2d 150. As discussed earlier, the Legislature has enacted MCL 600.5813, which applies to claims by government plaintiffs seeking injunctive abatement of a public nuisance. See Dep't of Environmental Quality , 279 Mich.App. at 383, 760 N.W.2d 856. Accordingly, the government plaintiff in this case is no longer exempt from the statute of limitations under quod nullum tempus occurrit regi. See 19675 Hasse , 258 Mich.App. at 445-446, 671 N.W.2d 150.

C. EFFECT ON THE MICHIGAN ZONING ENABLING ACT

Amicus curiae Michigan Townships Association argues that if defendants are allowed to continue to keep and raise hogs on the subject property because the applicable statute of limitations has barred plaintiff's complaint, it would effectively render null the government's power to regulate nonconforming uses of zoned land, MCL 125.3208, and its authority to abate violations of zoning ordinances as nuisances, MCL 125.3407. This logic is flawed. The preceding authorities do not indicate that defendants may engage in further willful violations of plaintiff's zoning ordinances with impunity. They merely stand for the notion that if plaintiff is to file a cause of action against these-or any-defendants, it must do so within the prescribed period of limitations. While it may appear that plaintiff has a good claim against defendants for violating a local ordinance, the legislation of statutes of limitations represents "a public policy about the privilege to litigate." See Chase Securities Corp. v. Donaldson , 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). These statutes exist as a matter of necessity, pragmatism, and convenience. Id . "They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay." Id . Additionally, contrary to amicus curiae's contention, there is no provision in MCL 125.3208 that time-bars claims against any defendant. Any implication that the six-year period of limitations under MCL 600.5813 conflicts with a limitations period prescribed by MCL 125.3208 is therefore meritless.

We reverse the trial court's denial of defendants' motion for summary disposition and remand the case to allow defendants to move to amend their responsive pleading to include the statute of limitations in their affirmative defenses in accordance with MCR 2.118(C)(1). We do not retain jurisdiction.

Swartzle, P.J., and Sawyer and Ronayne Krause, JJ., concurred. 
      
      Fraser Twp. v. Haney , unpublished order of the Court of Appeals, Docket No. 337842 (September 18, 2017).
     
      
      Defendant Harvey Haney was previously sued by the Michigan Department of Natural Resources (DNR) in 2015 under the Privately Owned Cervidae Producers Marketing Act (POC Act), MCL 287.951 et seq ., when it was discovered that he improperly registered his private cervidae (deer) facility-which was apparently located at the same address as the hog-raising operation at issue in the instant case-by incorrectly identifying the zoning of the property as agricultural instead of commercial. Defendant failed to seek a variance, and his registration was ultimately revoked. The DNR sought to permanently enjoin defendant Harvey from possessing cervidae or operating a cervidae livestock operation without a permit and to require him to submit his animals for disease testing. However, the case was ultimately dismissed pursuant to a settlement agreement.
     
      
      Michigan has historically recognized public nuisance and private nuisance as two distinct violations. Adkins v. Thomas Solvent Co. , 440 Mich. 293, 302, 487 N.W.2d 715 (1992). "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. It evolved as a doctrine to resolve conflicts between neighboring land uses." Id . at 302-303 (citation omitted). "[T]he gist of a private nuisance action is an interference with the occupation or use of land or an interference with servitudes relating to land." Id . at 303, 487 N.W.2d 715. A public nuisance, in contrast, "involves the unreasonable interference with a right common to all members of the general public." Id . at 304 n. 8, 487 N.W.2d 715. Plaintiff, a governmental entity, did not specify which type of nuisance it was claiming against defendants in its complaint. Notably, the mere fact that a condition violates a local ordinance does not render that condition a public nuisance. Ypsilanti Charter Twp. v. Kircher , 281 Mich.App. 251, 277-278, 761 N.W.2d 761 (2008). However, plaintiff's language regarding the stench and flies drawn by deer and hog waste suggests that plaintiff was suing defendants because defendants' piggery interfered with the general public's "health, safety, peace, comfort, or convenience[.]" See Cloverleaf Car Co. v. Phillips Petroleum Co. , 213 Mich.App. 186, 190, 540 N.W.2d 297 (1995). The distinction is material, as an action for the abatement of a private nuisance is subject to the three-year statute of limitations under MCL 600.5805(10). Terlecki v. Stewart , 278 Mich.App. 644, 652-654, 754 N.W.2d 899 (2008) (rejecting the application of the 15-year period of limitations under MCL 600.5801(4) to a claim of private nuisance).
     
      
      This is sometimes also referred to as the "continuing-violations doctrine," "continuing-wrongful-acts doctrine," and "continuing-tort doctrine." Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club , 283 Mich.App. 264, 282, 769 N.W.2d 234 (2009).
     
      
      Amicus curiae, the Michigan Townships Association, cites to Joy Mgt. Co. v. City of Detroit , 183 Mich.App. 334, 342, 455 N.W.2d 55 (1990), for the proposition that the continuing-wrongs doctrine has been applied in the context of local ordinance violations. However, Joy Mgt. Case was published years before Garg or Marilyn Froling Revocable Living Trust , and so its holding-to the extent that it applied the continuing-wrongs doctrine-is no longer valid.
     