Brennan v. Edward D Jones & Co

626 N.W.2d 917 (2001) 245 Mich. App. 156

Linda Lockman BRENNAN and Estate of Susan Angell, Plaintiffs-Appellants,
v.
EDWARD D. JONES & CO., Appalachian Power Company, a/k/a American Electric Power and Commonwealth Edison a/k/a Unicon, Defendants-Appellees.

Docket No. 218427.

Court of Appeals of Michigan.

Submitted March 7, 2001, at Detroit. Decided March 20, 2001, at 9:10 a.m. Released for Publication May 7, 2001.

Weisman, Trogan, Young & Schloss, P.C., (by Anthony V. Trogan and Dale P. Ward), Bingham Farms, for the plaintiffs.

Egan & Mazzara, PLLC, (by Dennis K. Egan and Angela Emmerling Boufford), Troy, for Edward D. Jones & Co.

Before MURPHY, P.J., and HOOD and COOPER, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting defendant Edward D. Jones & Co.'s motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.

Plaintiffs contend that the trial court erred in granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) after the court refused to apply the discovery rule to plaintiffs' conversion claim involving the negotiation of stock certificates over plaintiffs' forged signatures. We disagree.

This Court reviews a grant of summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). 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." Jackson Co. Hog Producers v. Consumers Power Co., 234 Mich.App. 72, 77, 592 N.W.2d 112 (1999). Provided there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, whether a plaintiff's claim is barred by the statute of limitations is a question of law that is reviewed de novo by this Court. Id.

The statute of limitations is a procedural device designed to promote judicial economy and protect defendants' rights. Stephens v. Dixon, 449 Mich. 531, 534, 536 N.W.2d 755 (1995). However, our courts have applied the discovery rule to prevent unjust results "[w]hen a plaintiff would otherwise be denied a reasonable opportunity to bring suit due to the latent nature of the injury or the inability to discover the causal connection between the injury and the defendant's [action]...." Lemmerman v. Fealk, 449 Mich. 56, 65-66, 534 N.W.2d 695 (1995).

In this case, plaintiffs' claim sounded in conversion. We have defined conversion as "any distinct act of dominion wrongfully exerted over another's personal property. It occurs at the point that such wrongful dominion is asserted." Trail Clinic, PC v. Bloch, 114 Mich.App. 700, 705, 319 N.W.2d 638 (1982). A claim for the conversion of a forged instrument is governed by the three-year statute of limitations applicable to injuries to persons or property. Continental Casualty Co. v. Huron Valley Nat'l Bank, 85 Mich.App. 319, 323-324, 271 N.W.2d 218 (1978). MCL 600.5805; MSA 27A.5805 sets forth the period of limitation for injury to property or persons, stating, in pertinent 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.

* * *

(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.

Generally, the limitation period begins to accrue "at the time the wrong upon which the claim is based was done regardless of the time when damage results." MCL 600.5827; MSA 27A.5827.

In this case, the last negotiation of the forged certificates occurred in 1990. Accordingly, absent application of the discovery rule, the limitation period began to run at the time the conversion of the certificates occurred and plaintiffs were required to file their claim no later than 1993. Because plaintiffs' claim was not filed until late 1997, their claim was untimely and barred. Plaintiffs allege that they did not discover the conversion until 1995. If the discovery rule is applied, plaintiffs claim would have been timely filed because the period of limitations does not begin to run "``until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he had a possible cause of action.'" Brown v. Drake-Willock Int'I, Ltd., 209 Mich.App. 136, 142, 530 N.W.2d 510 (1995), quoting Thomas v. Process Equipment Corp., 154 Mich.App. 78, 88, 397 N.W.2d 224 (1986).

To determine whether to strictly enforce the statute of limitations or to impose the discovery rule, this Court "must carefully balance when the plaintiff learned of her injuries, whether she was given a fair opportunity to bring her suit, and whether defendant's equitable interests would be unfairly prejudiced by tolling the statute of limitations." Stephens, supra at 536, 536 N.W.2d 755. The Stephens Court noted that our courts have applied the discovery rule in medical malpractice cases, Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963), negligent misrepresentation cases, Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974), products liability cases for asbestos-related injuries, Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 309, 399 N.W.2d 1 (1986), and in pharmaceutical products liability cases, Moll v. Abbott Laboratories, 444 Mich. 1, 12-13, 506 N.W.2d 816 (1993). Stephens, supra at 537, 536 N.W.2d 755. The Court emphasized that "``the concern for protecting defendants from "time-flawed evidence, fading memories, lost documents, etc." is less significant in these cases.'" Id., quoting Larson, supra at 312, 399 N.W.2d 1, quoting Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 523 (Fla.App., 1985).

However, in this case approximately seven years passed between the last negotiation of the forged stock certificates in 1990 and the filing of plaintiffs' complaint in late 1997. We conclude that the strong public policies favoring finality in commercial transactions, protecting a defendant from stale claims, and requiring a plaintiff to diligently pursue his claim outweigh the prejudice to plaintiffs and militate against applying the discovery rule in the context of commercial conversion cases. See Ins. Co. of North America v. Manufacturers Bank of Southfield NA, 127 Mich.App. 278, 283-284, 338 N.W.2d 214 (1983); Stephens, supra at 534, 536 N.W.2d 755. The majority of states have also refused to apply the discovery rule in commercial conversion cases. See Husker News Co. v. Mahaska State Bank, 460 N.W.2d 476, 477-478 (Iowa, 1990); Palmer Mfg. & Supply, Inc. v. BancOhio Nat'l Bank, 93 Ohio App.3d 17, 23-24, 637 N.E.2d 386 (1994).

Plaintiffs further contend that there is no requirement under the law for a property owner to verify that his possessions have not been stolen. However, those jurisdictions that have refused to apply the discovery rule in commercial conversion cases have presumed that property owners

know what and where their assets are, despite the fact that the presumption may work a hardship upon the property owner who fails to discover his or her ownership rights until after the period has run. [Fuscellaro v. Industrial Nat'l Corp., 117 R.I. 558, 563, 368 A.2d 1227 (1977).]

The trial court did not err in granting defendant's motion for summary disposition after rejecting the application of the discovery rule and applying the statute of limitations.

Affirmed.