John a Moton Jr v. City of Saginaw ( 2020 )

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
JOHN A. MOTON, JR., UNPUBLISHED
November 12, 2020
Plaintiff-Appellee,
v No. 351679
Saginaw Circuit Court
CITY OF SAGINAW and ROBERT RUTH, LC No. 18-037772-NZ
Defendants-Appellants.
Before: MARKEY, P.J., and M.J. KELLY and GADOLA, JJ.
PER CURIAM.
In this interlocutory appeal, defendants appeal on leave granted the order of the trial court
denying their motion for summary disposition under MCR 2.116(C)(7), (8), and (10), of plaintiff’s
claims under the WDCA1 and the ELCRA.2 We reverse and remand for entry of judgment in favor
of defendants.
I. FACTS
This appeal arises from plaintiff’s claim that defendants retaliated against him in violation
of the WDCA and ELCRA. In 1985, plaintiff became a Saginaw police officer and a member of
the police officers’ union under the applicable collective bargaining agreement (CBA). In 2001,
plaintiff sustained a work-related knee injury. He sought and received workers’ compensation
benefits. In early 2002, after two knee surgeries and a guarded prognosis, plaintiff sought disability
retirement. In May 2002, the Saginaw Police Pension Board deferred plaintiff’s retirement request
pending a six-month medical re-evaluation. Meanwhile, on June 30, 2002, the existing CBA
expired. Plaintiff continued to work for the police department pending resolution of his disability
retirement request, while the union and the City negotiated a new CBA.
1
Worker’s Disability Compensation Act of 1969 (WDCA), MCL 418.101, et seq.
2
Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101, et seq.
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In September 2002, plaintiff sued the City alleging that the police department had retaliated
against him for seeking benefits under the WDCA and had discriminated against him under the
ELCRA. After plaintiff filed the lawsuit, the pension board accepted plaintiff’s disability
retirement request. In February 2004, plaintiff and the City settled the lawsuit.
After plaintiff retired, the union and the City continued to negotiate a new CBA. In May
2004, the union representative notified the then active Saginaw police officers that the City and
the union were discussing implementing a cost of living adjustment (COLA) for future retirees,
and that the COLA would require increased pension contributions by employees. Plaintiff, having
retired, did not receive the memorandum. The union and the City signed a new CBA in February
2005. Although the general provisions of the new CBA were retroactive to July 1, 2002, the retiree
COLA was retroactive to July 1, 2004. Because plaintiff had retired in 2002, he was not eligible
for the COLA, nor was he required to make increased contributions.
According to plaintiff, in 2017 or 2018, he learned from a former co-worker that defendant
Officer Robert Ruth had selected the July 1, 2004 effective date for the COLA to ensure that
plaintiff was excluded from the adjustment in retaliation for plaintiff’s 2002 claims.3 In 2018,
plaintiff initiated this lawsuit against Ruth and the City, alleging that defendants chose the 2004
eligibility date for the retiree COLA to exclude him from the adjustment in retaliation for his prior
worker’s compensation and civil rights claims. Although the allegedly wrongful conduct occurred
in 2005, plaintiff asserted that his claims were timely because defendants had fraudulently
concealed his cause of action, thereby tolling the statute of limitations.
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10) contending
that plaintiff had failed to state a claim. The trial court denied defendants’ motion for summary
disposition, but ordered plaintiff to file an amended complaint stating with particularity the
grounds for fraudulent concealment, and permitted defendants to renew their summary disposition
motion after the close of discovery.
Plaintiff thereafter filed an amended complaint again alleging fraudulent concealment.
Defendants again moved for summary disposition under MCR 2.116(C)(8) and (10), contending
that plaintiff had failed to set forth a prima facie claim of retaliation and that there was no genuine
issue of material fact. Defendants also moved for summary disposition under MCR 2.116(C)(7),
contending that plaintiff’s claim was barred by the statute of limitations. The trial court denied
defendants’ renewed motion, determining that plaintiff had alleged sufficient facts in the amended
complaint to establish fraudulent concealment, thereby tolling the statute of limitations. The trial
court also denied defendants summary disposition on the other grounds asserted, finding a genuine
issue of material fact that defendants retaliated against plaintiff.
This Court thereafter granted defendants’ application for leave to appeal and stayed the
trial court’s proceedings pending resolution of this appeal. Moton v City of Saginaw, unpublished
order of the Court of Appeals, entered February 3, 2020 (Docket No. 351679).
3
By contrast, the former co-worker testified that he did not make this statement to plaintiff.
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II. ANALYSIS
Defendants contend that the trial court erred by denying their motion for summary
disposition under MCR 2.116(C)(7) because plaintiff’s claims under the WDCA and ELCRA are
barred by the statute of limitations. We agree.
This Court reviews de novo a trial court’s decision to grant or deny summary disposition.
Johnson v Vanderkooi, 502 Mich. 751, 761; 918 NW2d 785 (2018). Summary disposition under
MCR 2.116(C)(7) is appropriate when a claim is barred by the statute of limitations. Frank v
Linkner, 500 Mich. 133, 140; 894 NW2d 574 (2017). When reviewing a trial court’s decision on
a motion for summary disposition under MCR 2.116(C)(7), we consider all documentary evidence
in the light most favorable to the nonmovant, RDM Holdings, Ltd v Continental Plastics Co, 281
Mich. App. 678, 687; 762 NW2d 529 (2008), and accept the complaint as factually accurate unless
it is specifically contradicted by affidavits or other documentation. Frank, 500 Mich. at 140. If
there is no factual dispute, whether a claim is barred by the statute of limitations is a question of
law for the Court. Id.
A statute of limitations is a “ ‘law that bars claims after a specified period; specif[ically], a
statute establishing a time limit for suing in a civil case, based on the date when the claim
accrued.’ ” Frank, 500 Mich. at 142, quoting Black’s Law Dictionary (10th ed) (alteration in
original). The purpose of a statute of limitation is to protect a defendant from being compelled to
defend against a stale claim. Stephens v Dixon, 449 Mich. 531, 534; 536 NW2d 755 (1995).
In this case, plaintiff’s amended complaint alleges that in 2005 defendants entered into a
collective bargaining agreement that resulted in cost of living adjustment for retirees of the
Saginaw police department who retired on or after July 1, 2004; the COLA did not apply to
plaintiff, who retired in 2002. Plaintiff contends that this date was selected to exclude him from
the COLA in retaliation against him for the lawsuit he filed against the City in 2002. Plaintiff
alleges that the retaliation violates the WDCA and the ELCRA.
The parties in this case do not dispute that these claims are governed by a three-year
limitation period. Plaintiff filed his complaint in this case on October 16, 2018, more than three
years after the alleged retaliatory act in 2005. As a result, plaintiff’s claims are barred by the
statute of limitations unless the limitation period was tolled.
Plaintiff asserts that his otherwise untimely claims are rendered timely because the statute
of limitations was tolled by defendants’ fraudulent concealment of the existence of plaintiff’s cause
of action. MCL 600.5855 permits the tolling of a statutory limitations period when a defendant
fraudulently concealed the existence of a claim. Mays v Snyder, 323 Mich. App. 1, 39; 916 NW2d
227 (2018), aff’d ___ Mich ___ (2020) (Docket Nos. 157335-7, Docket Nos. 157340-2). In that
regard, MCL 600.5855 provides:
If a person who is or may be liable for any claim fraudulently conceals the existence
of the claim or the identity of any person who is liable for the claim from the
knowledge of the person entitled to sue on this claim, the action may be commenced
at any time within 2 years after the person who is entitled to bring the action
discovers, or should have discovered, the existence of the claim or the identity of
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the person who is liable for the claim, although the action would otherwise be
barred by the period of limitations.
Under the statute, the plaintiff has two years within which to bring the claim from the time
he or she discovers or reasonably should have discovered the claim if the plaintiff demonstrates
fraudulent concealment by the defendant. Frank, 500 Mich. at 148. Our Supreme Court has
observed that this statute “provides for essentially unlimited tolling based on discovery when a
claim is fraudulently concealed.” Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich.
378, 391; 738 NW2d 664 (2007).
For purposes of the tolling provision, this Court has defined fraudulent concealment as
“employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder
acquirement of information disclosing a right of action. The acts relied on must be of an
affirmative character and fraudulent.” Doe v Roman Catholic Archbishop of Archdiocese of
Detroit, 264 Mich. App. 632, 642; 692 NW2d 398 (2004) (quotation marks and citation omitted).
Fraudulent concealment extends the applicable limitations period only if the defendant made an
affirmative act or representation, Dillard v Schlussel, 308 Mich. App. 429, 443; 865 NW2d 648
(2014), and the alleged concealment must involve conduct designed to prevent the recognition of
a cause of action. See Doe, 264 Mich. App. at 643. Mere silence ordinarily is insufficient to
establish fraudulent concealment. Reserve at Heritage Village Ass’n v Warren Financial
Acquisition, LLC, 305 Mich. App. 92, 123; 850 NW2d 649 (2014). In addition, to take advantage
of the tolling provision, the plaintiff must be reasonably diligent in investigating and pursuing the
cause of action. See Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Inst, 266
Mich. App. 39, 48; 698 NW2d 900 (2005).
Thus, in this case, to successfully assert fraudulent concealment, plaintiff was required to
plead in his amended complaint the affirmative acts or representations by defendants that were
designed to prevent his discovery of the cause of action. Doe, 264 Mich. App. at 642; see also
Mays, 323 Mich. App. at 39. A review of the record reveals that, although the Amended Complaint
states that defendants fraudulently concealed plaintiff’s cause of action, it does not specify any
representation or act by defendants to support this allegation. Plaintiff does not allege any specific
act taken by defendants that are the “employment of artifice, planned to prevent inquiry or escape
investigation, and mislead or hinder acquirement of information disclosing a right of action.” Doe,
264 Mich. App. at 642. Rather, plaintiff alleges only that (1) in 2005 defendants negotiated a new
collective bargaining agreement that included a COLA for retirees retiring after July 1, 2004,
which did not apply to him because he retired in 2002, (2) defendants did not notify plaintiff of
the COLA provision in the new CBA, and (3) in 2017 or 2018, he was told by a former co-worker
that defendant purposefully excluded him from the COLA in retaliation for his 2002 claims.
Plaintiff does not allege any acts by defendants to conceal this information from plaintiff, only that
he did not discover it until 2017 or 2018.
As noted, a defendant’s mere silence ordinarily is insufficient to establish fraudulent
concealment of the existence of a claim. Reserve at Heritage Village Ass’n, 305 Mich. App. at 123.
Having failed to set forth factual allegations to support his assertion that defendants fraudulently
concealed his discovery of his alleged cause of action against them, plaintiff failed to demonstrate
a tolling of the statute of limitations. The trial court therefore erred in denying defendants’ motion
for summary disposition under MCR 2.116(C)(7). Because we resolve this issue in favor of
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defendants, it is unnecessary for this Court to reach defendants’ additional assertions on appeal
that the trial court erred by denying their motion for summary disposition under MCR 2.116(C)(8)
and (10).
Reversed and remanded for entry of judgment in favor of defendants. We do not retain
jurisdiction.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Michael F. Gadola
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