Louis Telerico v. Tom Nowatzke ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
LOUIS TELERICO, as Assignee of TELERICO UNPUBLISHED
MECHANICAL ELECTRICAL, January 15, 2015
Plaintiff-Appellant,
v No. 318574
Washtenaw Circuit Court
TOM NOWATZKE, TRANSPORTATION LC No. 12-000561-CK
LOGISTICS, L.L.C., LTW COMPANY, and NSC
SERVICE CENTER, L.L.C.,
Defendants-Appellees.
Before: TALBOT, C.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
Plaintiff Louis Telerico, as assignee of Telerico Mechanical Electrical, appeals as of right
the trial court order granting defendants’ motion for summary disposition pursuant to MCR
2.116(C)(7).1 We affirm.
According to plaintiff, on September 20, 2003, he and defendants agreed that he would
store two trailers on defendants’ property and defendants would waive any rent owed.
Furthermore, they agreed that defendants would sell the trailers with 65% of the proceeds going
to plaintiff and the remaining 35% of the proceeds going to defendants. Defendants agreed to
notify plaintiff of all offers to purchase the trailers and to give plaintiff the option to accept or
reject any offer. Subsequently, while plaintiff was near defendants’ property on an unspecified
date, he noticed that the trailers were not there. Plaintiff’s father, Louis Perry, Sr., then called
defendant Tom Nowatzke on May 19, 2006, to ask about the status of the trailers. Nowatzke told
Perry that he sold the trailers and kept the entire amount of the proceeds for rent owed. Perry
memorialized the substance of this telephone conversation in a letter he wrote to Nowatzke dated
May 22, 2006. On May 21, 2012, plaintiff filed a complaint against defendants alleging claims
of breach of contract, conversion, unjust enrichment, and civil conspiracy. Plaintiff later
voluntarily dismissed his claim for conversion because it was barred by the statute of limitations.
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Defendants moved for summary disposition under MCR 2.116(C)(10) as well, but the trial
court did not decide the motion on that ground and it is not an issue on appeal.
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On August 22, 2013, defendants moved for summary disposition pursuant to MCR 2.116(C)(7),
arguing that the claims were barred by the statute of limitations. On September 12, 2013, the
trial court granted defendants’ motion and dismissed plaintiff’s complaint with prejudice.
Summary disposition under MCR 2.116(C)(7) is appropriate where the statute of
limitations has expired before commencement of the action. MCR 2.116(C)(7). “When
reviewing a motion for summary disposition pursuant to MCR 2.116(C)(7), a court must accept
as true a plaintiff’s well-pleaded factual allegations, affidavits, or other documentary evidence
and construe them in the plaintiff’s favor.” Brennan v Edward D Jones & Co, 245 Mich. App.
156, 157; 626 NW2d 917 (2001) (quotation marks omitted). On appeal, plaintiff challenges the
dismissal of his breach of contract claim under MCR 2.116(C)(7).
“No person may bring or maintain any action to recover damages or sums due for breach
of contract . . . unless, after the claim first accrued to himself or to someone through whom he
claims, he commences the action within the periods of time prescribed by this section.” MCL
600.5807. “The period of limitations is 6 years for all . . . actions to recover damages or sums
due for breach of contract.” MCL 600.5807(8). “In Michigan, a breach of contract claim
accrues ‘at the time the wrong upon which the claim is based was done regardless of the time
when damage results.’ ” Tenneco Inc v Amerisure Mut Ins Co, 281 Mich. App. 429, 458; 761
NW2d 846 (2008), quoting MCL 600.5827. In other words, a cause of action for breach of
contract accrues “when the promisor fails to perform under the contract.” Blazer Foods, Inc v
Restaurant Props, Inc, 259 Mich. App. 241, 245-246; 673 NW2d 805 (2003). “A plaintiff need
not know of the invasion of a legal right in order for the claim to accrue.” Dewey v Tabor, 226
Mich. App. 189, 193; 572 NW2d 715 (1997). To determine the wrong upon which the claim is
based, the parties’ contract must be examined.” Tenneco Inc, 281 Mich. App. at 458. To compute
the period of time during which a statute of limitations runs, the day of the breach is not
included, but the last day of the period is included unless that day is a Saturday or Sunday, in
which case the period runs until the next Monday. MCR 1.108(1).
In this case, plaintiff commenced suit on May 21, 2012, alleging a claim of breach of
contract against defendants. The statute of limitations for plaintiff’s breach of contract claim
was six years. MCL 600.5807(8). Because May 21, 2012, was a Monday, if the period for the
statute of limitations for plaintiff’s claim for breach of contract ended on the Saturday or Sunday
directly before May 21, 2012, that period extended through that Saturday and Sunday and ended
on May 21, 2012. MCR 1.108(1). In other words, if defendants breached the agreement on May
19, 2006, the day Perry contacted Nowatzke, then under MCR 1.108(1) plaintiff’s claim would
accrue on May 20, 2006. MCR 1.108(1). Six years after May 20, 2006, would be May 19, 2012,
which was a Saturday. Thus, under MCR 1.108(1), plaintiff could timely commence this action
on May 21, 2012. MCR 1.108(1). Therefore, plaintiff’s claim would not be barred by the six-
year statute of limitations as long as the breach occurred on May 19, 2006, or later.
Accepting plaintiff’s allegations as true, Brennan, 245 Mich. App. at 157, however, the
contract action is barred by the statute of limitations. The allegations supported that defendants
breached the agreement in failing to inform plaintiff of offers to purchase the trailers, failing to
give plaintiff the opportunity to accept or reject such offers, and failing to give plaintiff 65% of
the proceeds of such a sale. See Woody v Tamer, 158 Mich. App. 764, 771; 405 NW2d 213
(1987) (When one does not perform duties under a contract, the non-performance constitutes a
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breach.). Plaintiff never alleged when defendants breached the agreement. There is no evidence
on the record that defendants breached the agreement on May 19, 2006, or later. Rather, Perry
called Nowatzke about the trailers on May 19, 2006. Nowatzke testified at deposition that he
was not in possession of the trailers on May 19, 2006, which supports that any breach occurred
before May 19, 2006. Because there is no evidence or allegation that defendants breached the
agreement within the time period of the statute of limitations, the trial court properly granted
summary disposition to defendants under MCR 2.116(C)(7).
Plaintiff argues that, under Jackson v Estate of Green, 484 Mich. 209; 771 NW2d 675
(2009), his claim for breach of contract accrued on May 19, 2006, when Perry allegedly
demanded payment from Nowatzke. However, Jackson does not apply to this case where it
addressed how to determine when a contract for a loan payable on demand was breached. Here,
the agreement was breached by the non-performance of contractual duties. See Woody, 158
Mich. App. at 771. Demand for payment is irrelevant. Moreover, plaintiff is not entitled to
judicial tolling because MCL 600.5807(8) does not permit it. Secura Ins Co v Auto-Owners Ins
Co, 461 Mich. 382, 386; 605 NW2d 308 (2000). And, plaintiff has not alleged an affirmative
misrepresentation to allow fraudulent concealment to prevent the statute of limitations from
precluding plaintiff’s claim. See MCL 600.5855; Brownell v Garber, 199 Mich. App. 519, 527;
503 NW2d 81 (1993).
Affirmed.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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