Male v. Mayotte, Crouse & D’haene Architects, Inc , 163 Mich. App. 165 ( 1987 )

163 Mich. App. 165 (1987) 413 N.W.2d 698

MALE
v.
MAYOTTE, CROUSE & D'HAENE ARCHITECTS, INC

Docket Nos. 91204, 91205.

Michigan Court of Appeals.

Decided June 3, 1987.

Goodman, Eden, Millender & Bedrosian (by William H. Goodman), for plaintiffs.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. (by Michelle A. Thomas), for defendant.

Before: R.M. MAHER, P.J., and DOCTOROFF and H.T. CONLIN,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) based on the statute of limitations. We affirm.

Defendant, an architectural firm, supervised construction of a laundry facility for the Department of Corrections at the State Prison for Southern Michigan.

On December 14, 1976, defendant wrote to the Bureau of Facilities advising that the laundry facility would be turned over to the agency on January 31, 1977. On December 17, 1976, the Department of Management and Budget wrote to the Department of Corrections that the facility would be substantially completed and turned over to them on January 31, 1977.

At varying times throughout the construction period, the state had executed "Certificates of Substantial Completion of Contract Work" relative to all subcontractors who worked on the facility. The last such certificate, executed on January 31, 1977, provided that all work not yet finished was to be completed by March 1, 1977. The laundry began operating on January 31, 1977.

On October 23, 1978, one of the firm's architects, Nobyn D'Haene, attended a meeting regarding sewer problems at the laundry facility.

On November 19, 1982, plaintiffs were injured at the facility when a steam-pressurized drum exploded. Plaintiffs filed separate complaints against defendant on October 11 and October 22, 1984.

Defendant moved for accelerated judgment pursuant to GCR 116.1(5), now MCR 2.116(C)(7) relative to the Harrises' complaint. It was denied without prejudice pending additional discovery to determine the date of completion of the architect's work.

After consolidation of the two actions, defendant again moved for summary disposition, MCR 2.116(C)(7), claiming that the actions were barred by the applicable six-year statute of limitations, MCL 600.5839; MSA 27A.5839. Plaintiffs appeal as of right from the order granting the motion.

The standard under which we review summary disposition motions pursuant to MCR 2.116(C)(7) is that this Court must accept all of the plaintiff's well-pled allegations as true and construe them most favorably to the plaintiff. George v City of Petoskey, 55 Mich. App. 433, 435; 223 NW2d 6 (1974); Hansen v Upper Peninsula Power Co, 144 Mich. App. 138, 140; 373 NW2d 270 (1985).

Plaintiffs initially argue that, irrespective of whether an improvement is accepted, occupied or used, the period of limitation does not begin to run until the improvement is completed. Next, they argue that summary disposition was improvidently granted because an issue of fact existed relative to when the facility was completed, notwithstanding the fact that defendant's motion was brought pursuant to MCR 2.116(C)(7). Specifically, they contend that, because Nobyn D'Haene attended a meeting on October 23, 1978, regarding problems at the facility, the facility was not completed as of that date and the period of limitation had not yet begun to run.

MCL 600.5839(1); MSA 27A.5839(1), the architect's and engineer's statute, provided as follows when plaintiff's cause of action accrued:^[1]

No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

This statute was restated in O'Brien v Hazelet & Erdal, 410 Mich. 1, 15; 299 NW2d 336 (1980):

For actions which accrue within six years from occupancy, use, or acceptance of the completed improvement, the statute prescribes the time within which such actions may be brought and thus acts as a statute of limitations.

We therefore agree with plaintiffs' argument that the improvement is deemed to be completed at the time of acceptance, occupation or use.

However, we find no factual issue as to when the facility was completed for statute of limitations purposes. The trial court was obligated to consider not only the pleadings, but also affidavits, depositions, admissions, and documentary evidence filed with the court, MCR 2.116(G)(5). In this case, the court considered certificates of substantial completion drafted and accepted by the state (indicating that the state accepted the facility as substantially complete no later than January 31, 1977), progress notes, correspondence, deposition testimony and affidavits. There was nothing to create a factual issue, for even accepting the information from the last certificate dated January 31, 1977 — that all work not yet finished was to be completed by March 1, 1977 — plaintiffs' claims were barred.

Plaintiffs' last argument is that because Nobyn D'Haene attended a meeting relative to problems at the facility on October 23, 1978, the period of limitation did not begin to run until that time, for the improvement was not complete until that time. We find plaintiffs' argument to be without merit, for the architect's deposition testimony indicated that the meeting took place during the one-year warranty period on some sewer problems that the facility experienced. At that time, he took comments from state employees and forwarded them to the proper party relative to the problems. There was no evidence that the facility was not completed at that time; just that problems had occurred.

Allowing such a meeting to prolong the running of the period of limitation would be in contravention of the statute's dual purposes of limitation and repose of actions. See, O'Brien, supra at 15; Oole v Oosting, 82 Mich. App. 291, 298-300; 266 NW2d 795 (1978).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The statute has been amended effective March 31, 1986.