                          STATE OF MICHIGAN

                           COURT OF APPEALS


TOWNSHIP OF FRASER,                                                 UNPUBLISHED
                                                                    December 20, 2018
               Plaintiff-Appellee,

v                                                                   No. 337842
                                                                    Bay Circuit Court
HARVEY HANEY and RUTH ANN HANEY,                                    LC No. 16-003272-CH

               Defendants-Appellants.


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 their 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 the statute of
limitations therefore did not apply. Defendants appeal by leave granted.1 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 they were creating a nuisance due to the stench and flies drawn by deer2 and hog


1
  See Township of Fraser v Haney, unpublished order of the Court of Appeals, Docket No.
337842 (September 18, 2017).
2
  Defendant Harvey 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


                                                -1-
waste. Defendant Harvey Haney testified that privately owned deer or elk were no longer on the
subject property, but 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 began 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 under MCL 600.5813. The trial court
denied defendants’ motion, reasoning that the statute of limitations did not apply against plaintiff
because the case constituted an action in rem.

                                 II. STANDARD OF REVIEW

        This Court reviews 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, de novo. Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 386;
738 NW2d 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 NW2d 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, 429; 789 NW2d 211
       (2010) (citations omitted).]


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.


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“[O]nly factual allegations, not legal conclusions, are taken as true under MCR 2.116(C)(7).”
Davis v City of Detroit, 269 Mich App 376, 379 n 1; 711 NW2d 462 (2005).

               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 in their first responsive pleading.
However, this case presents the unusual situation where 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 against plaintiff’s claim, though plaintiff did not
argue that defendants failed to properly assert the statute of limitations defense in their
responsive pleading until after this appeal was filed. 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 NW2d 280 (2015). 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 NW2d 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 period of limitation’s 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 NW2d 721
(2002); Grebner v Clinton Charter Twp, 216 Mich App 736, 744; 550 NW2d 265 (1996). In this
case, plaintiff did not object to defendants’ failure to allege a statute of limitations defense in
their responsive pleading until after this appeal was filed. Plaintiff briefed arguments against the
applicability of the statute of limitation and presented its case to the trial court. Ergo, plaintiff
has impliedly consented to the adjudication of the issue. See Zdrojewski, 254 Mich App at 61.

       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. Here, 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 NW2d 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

                                                -3-
judgment.” (Emphasis added.) This Court, in Geisland, 78 Mich App at 630, held that where a
party improperly asserted a statute of limitations defense but did not mislead or prejudice the
opposition, it was appropriate to allow the party to seek leave to amend their answer to include
the affirmative defense on remand. This Court in Jesperson v Auto Club Ins Ass’n, 306 Mich
App 632, 647; 858 NW2d 105 (2014), rev’d on other grounds 499 Mich 29 (2016), held that
where the trial court could have granted a defendant leave to amend its pleading to include a
statute of limitations defense not previously asserted, and where the defense would have barred
the plaintiff’s claim, the Court’s interest in judicial efficiency enabled the Court to forego
remand and simply determine that the statute of limitations defense was not waived. Id. For
these reasons, 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.

         It is important to note that 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. 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).]

As discussed below, defendants’ assertion of the statute of limitations would not be futile.
Further, because plaintiff was given the opportunity to brief and argue its position against
defendants’ assertion of the statute of limitations before the trial court, it can hardly be said that
plaintiff would suffer prejudice by allowing 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, GP, LLC, 263 Mich App 1, 5; 687 NW2d 309
(2004).

        This Court’s decision in Ostroth is perhaps most instructive. In that case, this Court
considered whether a trial court erred in 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 its motion for summary disposition. Id. Even so, 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, since there is no indication that defendants
asserted the statute of limitations defense in bad faith, the delay in filing a motion to amend


                                                 -4-
defendants’ affirmative defenses would not be sufficient to warrant denying such amendment.
See id.; Amburgey, 238 Mich App at 247.

                      B. THE APPLICABLE PERIOD OF LIMITATIONS

        Having determined that defendants’ attempted assertion of the statute of limitations 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.3 In Dep’t of Environmental
Quality v Waterous Co, 279 Mich App 346, 383; 760 NW2d 856 (2008), this Court held that an
abatement of a public nuisance claim 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. See id.

        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 an 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 it began to result in recoverable damage. See id. 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.



3
  Michigan has historically recognized public nuisance and private nuisance as two distinct
violations. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 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 . . . . The 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 302-303. 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. 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 NW2d 761 (2008). However, plaintiff’s language
regarding the stench and flies drawn by deer and hog waste suggests that plaintiff was suing
defendants not because they interfered with plaintiff’s enjoyment of its own land, but 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
NW2d 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 NW2d 899 (2008) (simultaneously rejecting the
application of the 15-year period of limitations under MCL 600.5801(4) to a claim of private
nuisance).


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       It is important to note that 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, 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. See
Trentadue, 479 Mich at 391-392.

        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 doctrine4 in Michigan, including in nuisance cases. Marilyn Froling
Revocable Trust v Bloomfield Hills Country Club, 283 Mich App 264, 288; 769 NW2d 234
(2009) (holding that the Michigan Supreme Court’s decision in Garg v Macomb Co Community
Mental Health Servs (Amended Opinion), 472 Mich 263, 696 NW2d 646 (2005), amended 473
Mich 1205 (2005), and its progeny rendered the common-law continuing wrongs doctrine
inapplicable in all cases within the state). Further, no evidence was presented by either party
suggesting that defendants were adding new swine to the subject property. Therefore, no new
wrongs establishing a newly accrued cause of action can salvage plaintiff’s argument.
Accordingly, plaintiff’s contention in this regard is meritless.5

        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
City of Detroit, 258 Mich App at 448, 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


4
  This is sometimes also referred to as the “continuing violations doctrine,” “continuing-
wrongful-acts doctrine,” and “continuing tort doctrine.” Marilyn Froling Revocable Trust v
Bloomfield Hills Country Club, 283 Mich App 264, 282; 769 NW2d 234 (2009).
5
 Amicus curiae, the Michigan Townships Association, cites to Joy Mgt Co v City of Detroit, 183
Mich App 334, 342; 455 NW2d 55 (1990), for the proposition that 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 Trust, and so its holding—to the
extent that it applied the continuing wrongs doctrine—is no longer valid.


                                                -6-
       transitory nature, and its power to adjudicate the rights of all persons in the thing.
       [Quotation marks and citation omitted.]

No Michigan court has ever held that a claim seeking an 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 against specific, natural persons seeking injunctive
relief to force them—and only them—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 limitation applied to actions for the abatement of a
public nuisance in violation of a local zoning ordinance, this Court would have stated as much in
Jerome Twp v Melchi, 184 Mich App 228; 457 NW2d 52 (1990). The fact that a court does not
discuss a potentially relevant argument in its written opinions does not bear on the merit of the
argument. As previously discussed, the statute of limitations is an affirmative defense that must
be raised in a defendant’s responsive pleading. MCR 2.111(F)(3). 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 where it is unclear whether such an argument had any bearing on its outcome.

        Defendants also contend that the trial court improperly relied on City of Detroit, 258
Mich App 438, 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, City of
Detroit 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 limitation
absent statutory authority stating otherwise. Id. at 445-446. As discussed above, 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.
Accordingly, the government plaintiff in this case is no longer exempt from the statute of
limitations under quod nullum tempus occurrit regi. See City of Detroit, 258 Mich App at 445-
446.

            C. EFFECT ON THE MICHIGAN ZONING ENABLING ACT (MZEA)

        Amicus curiae Michigan Townships Association argues that, if defendants are allowed to
continue to keep and raise hogs on the subject property pursuant to the applicable statute of
limitations, it would effectively render 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, null. 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 limitation represents a “public policy about the privilege to litigate.”
See Chase Securities Corp v Donaldson, 325 US 304, 314; 65 S Ct 1137; 89 L Ed 1628 (1945).

                                                 -7-
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 limitation under MCL 600.5813 conflicts with a
limitation 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 in order 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.



                                                          /s/ Brock A. Swartzle
                                                          /s/ David H. Sawyer
                                                          /s/ Amy Ronayne Krause




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