                           STATE OF MICHIGAN

                            COURT OF APPEALS



FISHER SAND AND GRAVEL COMPANY,                                      UNPUBLISHED
                                                                     December 21, 2017
               Plaintiff-Appellee,

v                                                                    No. 334569
                                                                     Midland Circuit Court
NEAL A. SWEEBE, INC.,                                                LC No. 09-005960-CK

               Defendant-Appellant.


Before: MURPHY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

        Following a bench trial, the trial court entered a $109,667.16 judgment in favor of
plaintiff, Fisher Sand and Gravel Company. Defendant, Neal A. Sweebe, Inc, appeals by right.
On appeal, he argues that the statute of limitations bars plaintiff from recovering on invoices that
are more than six years old (as of the date the complaint was filed). We affirm.

        The trial court found that there was an implied account stated between plaintiff and
defendant based on defendant’s lack of objections to timely and regular monthly account
statements sent from plaintiff to defendant that reflected amounts due for invoices dating from
1991 until 2004. The court found “[t]he May 31, 2005 bill shows the account was changed due
to activity by Defendant as late as October 25, 2004, and there was implied assent to the
outstanding balance of the account which renders it enforceable as being within the statute of
limitations period.”

        Defendant does not challenge the trial court’s factual findings. Instead, the sole issue
raised is whether we should apply the accrual date for an account stated claim set forth by our
Supreme Court in Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543; 837 NW2d
244 (2013) or whether we should apply the accrual date for an account stated claim set forth in
the dissent in that case. Defendant contends that we should apply the dissent’s analysis, and he
asserts that the majority’s analysis—which was contained in a footnote—is non-binding dictum.
We disagree.

        “[I]f our Supreme Court ‘intentionally takes up, discusses and decides a question
germane to, though not necessarily decisive of, the controversy, such decision is not a dictum,
but is a judicial act of the court which it will thereafter recognize as a binding decision.” Detroit
Free Press Inc v Univ of Michigan Regents, 315 Mich App 294, 297-298; 889 NW2d 717 (2016)
(citation omitted). In Fisher Sand & Gravel, our Supreme Court was tasked with determining
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whether an account stated was subject to the six-year statute of limitations period set forth in
MCL 600.5807(8). Fisher Sand & Gravel, 494 Mich at 561-562. In concluding that it was, the
Court stated:

               A cause of action on an account stated accrues upon an adjustment of the
       parties’ respective claims against one another. White [v Campbell], 25 Mich
       [463,] 468 [(1872)] (“The creditor becomes entitled to recover the agreed balance,
       in an action based on the fact of its acknowledgement by the debtor, upon an
       adjustment of their respective claims[.]”) (emphasis added). In other words, the
       accrual of an account stated claim “occurs when assent to the statement of
       account is either expressed or implied . . . .” 13 Corbin, Contracts (rev ed),
       § 72.4(2), p 473. . . . [Fisher Sand and Gravel Co, 494 Mich at 562 n 53.]

Given that the entire issue before the Court related to whether the claim was barred by the statute
of limitations, and given that the Court directed the trial court on remand to determine whether
defendant properly objected to plaintiff’s statement of the account, we conclude that the accrual
date for an account stated claim was germane to the controversy. See Detroit Free Press Inc,
315 Mich App at 297-298. Further, the Court intentionally took up the discussion, discussed, it
and decided it. See id. As such, it is binding on us and we are not free to adopt the position
advanced by the dissenting opinion. See id.

        Because we find defendant’s legal challenge unavailing, and because defendant has
raised no challenge to the trial court’s factual findings, 1 we affirm. As the prevailing party,
plaintiff may tax costs. MCR 7.219(A).

                                                            /s/ William B. Murphy
                                                            /s/ Michael J. Kelly
                                                            /s/ Brock A. Swartzle




1
  We note that the trial court found that defendant implicitly assented to the account stated on
May 31, 2005, which was a date within the six-year limitations period. As such, the trial court
found that the accrual date for the account stated claim was May 31, 2005. The complaint was
filed in August 2009, which is less than six years later. Accordingly, the account stated claim
was timely.


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