            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



DEBRA BURTON and SAMANTHA                                           UNPUBLISHED
ACHTABOWSKI, on Behalf of Themselves and                            March 14, 2019
All Others Similarly Situated,

               Plaintiffs-Appellees,

v                                                                   No. 341155
                                                                    Bay Circuit Court
MICHIGAN SUGAR COMPANY,                                             LC No. 16-003713-NZ

               Defendant-Appellant.


Before: METER, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

        Defendant appeals by leave granted the trial court’s denial of its motion for summary
disposition of plaintiffs’ nuisance and negligence claims on statute of limitations grounds, and
the denial of its motion for dismissal of plaintiffs’ negligence claim for failure to allege a
physical injury to person or property. For the reasons stated in this opinion, we reverse the trial
court’s denial of defendant’s motion on statute of limitations grounds and remand for entry of an
order dismissing plaintiffs’ claims.

                                       I. BACKGROUND

        Plaintiffs, on behalf of themselves and similarly situated persons living within 1.5 miles
of defendant’s sugar manufacturing facility in Bay City, Michigan, sued defendant because its
sugar beet processing operation caused noxious odors that invaded their properties. Defendant’s
facility has been in operation since 1901. Plaintiffs alleged interference with their use and
enjoyment of their properties and that their properties diminished in value or would do so in the
future. In lieu of answering, defendant moved for summary disposition under MCR 2.116(C)(7)
and (8) on the ground that plaintiffs’ claims were time-barred by the applicable three-year
limitations period under MCL 600.5805(10),1 and on the ground that plaintiffs failed to allege a
present physical injury to person or property in their negligence claim. Plaintiffs opposed the
motion and the trial court denied it but ordered plaintiffs to amend their complaint to set forth
specific facts regarding the date or dates on which their claims accrued.

        Plaintiffs amended their complaint, and again in lieu of answering, defendant moved for
summary disposition under MCR 2.116(C)(7) and (8) on the same grounds. Plaintiffs opposed
defendant’s motion and the trial court denied it. Defendant sought leave to appeal on statute of
limitations grounds and on the ground that plaintiffs failed to state a claim for negligence. This
Court granted defendant leave to appeal. See Burton v Mich Sugar Co, unpublished order of the
Court of Appeals, entered June 27, 2018 (Docket No. 341155).

                                 II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition pursuant
to MCR 2.116(C)(7). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “The
contents of the complaint are accepted as true unless contradicted by documentation submitted
by the movant.” Id. at 119. “[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
(2006). In a summary disposition motion brought under MCR 2.116(C)(7), the trial court must
consider the affidavits, pleadings, depositions, admissions, and any other documentary evidence
submitted by the parties to determine whether a genuine issue of material fact exists. Nuculovic
v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). If no material facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of the facts, whether a claim is
barred is a legal issue for the trial court’s determination. Dextrom v Wexford Co, 287 Mich App
406, 431; 789 NW2d 211 (2010).

                                        III. ANALYSIS

        Defendant argues that the trial court erred because plaintiffs based their nuisance and
negligence claims upon conduct and alleged injuries that occurred more than three years before
plaintiffs filed their lawsuit. Defendant contends that plaintiffs’ claims accrued long ago and the
three-year limitation period expired resulting in plaintiffs’ claims being time-barred under MCL
600.5805(10). We agree.

       “To prevail in nuisance, a possessor of land must prove significant harm resulting from
the defendant’s unreasonable interference with the use or enjoyment of the property.” Adams v
Cleveland–Cliffs Iron Co, 237 Mich App 51, 67; 602 NW2d 215 (1999). This Court has
recognized that a possessor of land may bring an action for nuisance when the possessor’s
enjoyment of the land is interfered with by “noise, vibrations, or ambient dust, smoke, soot, or
fumes[.]” Id. “The essence of private nuisance is the protection of a property owner’s or
occupier’s reasonable comfort in occupation of the land in question.” Adkins v Thomas Solvent


1
 The Legislature recently amended MCL 600.5805 designating subpart (10) as subpart (2). See
2018 PA 183.


                                                -2-
Co, 440 Mich 293, 303; 487 NW2d 715 (1992). “A private nuisance is a nontrespassory
invasion of another’s interest in the private use and enjoyment of land.” Id. at 302. In Capitol
Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 431-432; 770 NW2d 105 (2009)
(citation omitted), this Court explained that a plaintiff must prove the following elements to
establish a private nuisance claim:

       (a) the other has property rights and privileges in respect to the use or enjoyment
       interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct
       is the legal cause of the invasion, and (d) the invasion is either (i) intentional and
       unreasonable, or (ii) unintentional and otherwise actionable under the rules
       governing liability for negligent, reckless, or ultrahazardous conduct. To prove a
       nuisance, significant harm to the plaintiff resulting from the defendant’s
       unreasonable interference with the use or enjoyment of property must be proven.

A nuisance claim is distinguishable from a negligence claim because nuisance is a condition and
not an act or failure to act. Travers Lakes Comm Maint Ass’n v Douglas Co, 224 Mich App 335,
346; 568 NW2d 847 (1997). Our Supreme Court has explained that the test for a nuisance is
objective: an activity will not rise to the level of a nuisance unless “of such a character as to be of
actual physical discomfort to persons of ordinary sensibilities.” Smith v Western Wayne Co
Conservation Ass’n, 380 Mich 526, 536; 158 NW2d 463 (1968).

       To establish a negligence claim, a plaintiff must plead and prove four elements: “(1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages.” Finazzo v Fire Equip Co, 323 Mich App 620, 635; 918 NW2d 200 (2018) (citation
omitted). To prove negligence, “a plaintiff must demonstrate a present physical injury to person
or property in addition to economic losses that result from that injury.” Henry v Dow Chem Co,
473 Mich 63, 75-76; 701 NW2d 684 (2005).

        Under Michigan law, the defendant bears the burden of establishing that a claim is barred
by the statute of limitations. Schaendorf v Consumers Energy Co, 275 Mich App 507, 513; 739
NW2d 402 (2007) (citation omitted). Claims of damage to person or property are subject to a
three-year statute of limitations pursuant to MCL 600.5805, which provides in relevant part:

               (1) A person shall not bring or maintain an action to recover damages for
       injuries to persons or property unless, after the claim first accrued to the plaintiff
       or to someone through whom the plaintiff claims, the action is commenced within
       the periods of time prescribed by this section.

                (2) . . . the period of limitations is 3 years after the time of the . . . injury
       for all actions to recover damages . . . for injury to a person or property.

MCL 600.5827, specifies in relevant part:

       the period of limitations runs from the time the claim accrues. The claim accrues
       at . . . the time the wrong upon which the claim is based was done regardless of
       the time when damage results.



                                                  -3-
        This Court clarified that, when all of the elements of an action for injury to person or
property are present, the claim accrues and the statute of limitations begins to run. Froling Trust
v Bloomfield Hills CC, 283 Mich App 264, 290; 769 NW2d 234 (2009) (citation omitted).
Therefore, the three-year limitations period for property damage claims arising out of nuisance or
negligence begins running from the time that the claim accrues, which occurs when the wrong
upon which the claim is based “was done regardless of the time when damage results.” Id. at
279. Our Supreme Court explained in Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 388;
738 NW2d 664 (2007) (quotation marks and citation omitted), that the “wrong is done when the
plaintiff is harmed rather than when the defendant acted.” In Terlecki v Stewart, 278 Mich App
644, 655-656; 754 NW2d 899 (2008) (quoting Horvath v Delida, 213 Mich App 620, 627-628
540 NW2d 760 (1995)), this Court explained that “a continuing wrong is established by
continual tortious acts, not by continual harmful effects from an original, completed act.”

        In Township of Fraser v Haney, ___ Mich App ___; ___ NW2d ___ (2018);2 slip op 1-2,
this Court considered when a public nuisance cause of action accrued. The case arose from the
defendants’ operation of a piggery on their property that emitted a foul stench from hog waste.
This Court stated that, under MCL 600.5827, the period of limitation ran from the time the claim
accrued which started when the wrong occurred regardless of when damage resulted. Id. at ___;
slip op at 6. This Court explained:

       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. 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.

                                              * * *

       What is relevant, then, is not when plaintiff learned of defendants’ violation, but
       when the violation first took place. [Id. (citations omitted).]

       In Fraser, the plaintiff argued that each day that the defendants kept pigs on their
property constituted a separate zoning violation that resulted in the nuisance accrual period
beginning anew each day. 3 This Court ruled that plaintiff’s argument lacked merit because it
rested on the continuing wrongs doctrine which “this Court completely and retroactively
abrogated . . . including in nuisance cases.” Id. at ___; slip op at 6 (citing Froling Trust, 283
Mich App at 288).




2
 This Court recently approved the publication of its opinion. See Township of Fraser v Haney,
unpublished order of the Court of Appeals, entered September 18, 2017 (Docket No. 337842).
3
  The plaintiff relied on its zoning ordinance that specified that each violation and every day of a
violation constituted a separate offense. Id. at ___; slip op at 6.


                                                -4-
        In Henry v Dow Chemical Co, 501 Mich 965; 905 NW2d 601 (2018), a nuisance action
in which the plaintiffs alleged that the defendant bore liability for the presence of dioxin on their
real properties, our Supreme Court reversed this Court’s decision affirming the trial court’s
ruling that plaintiffs timely filed their complaint. Our Supreme Court explained that:

       MCL 600.5827 provides that the three-year limitations period for property
       damage claims arising out of negligence or nuisance, MCL 600.5805(10), begins
       to run from “the time the claim accrues,” and “the claim accrues at the time the
       wrong upon which the claim is based was done regardless of the time when
       damage results.” See Trentadue v Buckler Automatic Lawn Sprinkler Co, 479
       Mich 378, 387; 738 NW2d 664 (2007). The wrong is done when the plaintiff is
       harmed. Id. at 388. As explained by dissenting Judge GADOLA, the claimed harm
       to the plaintiffs in this case is the presence of dioxin in the soil of their properties.
       The period of limitations began to run from the date that this “wrong” occurred.
       The circuit court must therefore determine the accrual date of the plaintiffs’
       claims based on the occurrence of the wrong—the presence of dioxin on the
       plaintiffs’ properties.

        In Froling Trust, 283 Mich App 264, a case in which the development of neighboring
properties over many years led to recurring instances of flooding of the plaintiff’s property, this
Court considered when the plaintiff’s nuisance claim accrued under MCL 600.5805(10). This
Court first explained that, despite their allegation of a recurrent nuisance, the plaintiff could not
rely upon the continuing wrongs doctrine to save its claim because that common law doctrine
had been completely and retroactively abrogated by Garg v Macomb Co Comm Mental Health
Serv, 472 Mich 263; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005), and its progeny.
Id. at 288. This Court considered the evidence in the trial court record and concluded that the
defendants’ respective harmful conduct years ago triggered the running of the three-year
limitations period. This Court explained:

       Subsequent claims of additional harm caused by one act do not restart the claim
       previously accrued. For the purposes of accrual, there need only be one wrong
       and one injury to begin the running of the period of limitations. In sum, the
       accrual of the claim occurs when both the act and the injury first occur, that is
       when the “wrong is done.” [Id. at 291.]

        In this case, the parties disagree on when plaintiffs’ claims accrued. Plaintiffs contend
that their claims only started accruing three years before they filed their complaint in this action.
Plaintiffs conceded in the trial court proceedings that defendant’s operation of its facility
historically emitted foul odors long before the date on which they assert that their claims
accrued. They also conceded that they previously sued defendant for noxious odor emissions
and injuries to person and properties. They assert that, each day that defendant’s facility emitted
noxious odors, a new wrong giving rise to a separate nuisance claim occurred that began anew
the claim accrual period. Defendant contends that plaintiffs base their current claims on a
continuing wrong and therefore their claims accrued and the three-year limitations period expired
before they filed their complaint.



                                                 -5-
        The principles articulated in Froling Trust, Henry, and Fraser, require that, to decide the
statute of limitation issue presented in this case, we must determine two things: (1) what was the
“wrong,” and (2) when did the “wrong” cause injury to plaintiffs. Analysis of the facts alleged
in plaintiffs’ amended complaint and the evidence presented to the trial court indicate that both
plaintiffs’ negligence and nuisance claims arose from defendant’s negligent operation and
maintenance of its facility. For accrual determination purposes, defendant’s operation of its
facility constituted the wrong alleged. Plaintiffs likewise alleged that that wrong caused and
continued to cause the emissions of noxious odors.

        Plaintiffs’ factual allegations in their amended complaint also indicated that the “wrong”
caused injury to plaintiffs dating back many years before November 7, 2013, the date three years
before plaintiffs filed this lawsuit. We find that plaintiffs’ allegations plainly reveal that they and
other local residents complained of the wrong and the resulting noxious odor emission numerous
times many years before November 7, 2013. Although the record reflects that the number of
complaints increased during 2013 and thereafter, plaintiffs’ allegations establish that the alleged
wrong caused plaintiffs alleged nuisance injuries long before November 7, 2013. We conclude
that the wrong coupled with the injury triggered the running of the three-year period of
limitations under MCL 600.5805(2) before November 7, 2013.

        Plaintiffs’ allegations that defendant’s wrong recently increased the severity of the
noxious odors emissions does not change the accrual of plaintiffs’ claims or the running of the
three-year limitations period because the elements of plaintiffs’ claims were all present long
before November 7, 2013. The record reflects that, over a decade before filing this lawsuit,
plaintiffs alleged the same wrong, the same emission of noxious odors, and injuries to their
persons and properties. The record establishes that plaintiffs’ claims accrued over three years
before plaintiffs filed this lawsuit and the three-year limitations period expired before they filed
suit. Because plaintiffs filed this action after the expiration of the applicable three-year
limitations period, their claims were time-barred and should have been dismissed. Consequently,
the trial court erred by denying defendant’s motion for summary disposition under MCR
2.116(C)(7). Because our decision regarding the statute of limitations issue is dispositive, we
decline to consider defendant’s remaining issue.

       Reversed and remanded to the trial court for entry of an order dismissing plaintiffs’
claims as time-barred. We do not retain jurisdiction.

                                                               /s/ Patrick M. Meter
                                                               /s/ Deborah A. Servitto
                                                               /s/ James Robert Redford




                                                 -6-
