Traver Lakes Community Maintenance Ass'n v. Douglas Co.

568 N.W.2d 847 (1997) 224 Mich. App. 335 TRAVER LAKES COMMUNITY MAITENANCE ASSOCIATION, Plaintiff-Appellant, v. The DOUGLAS COMPANY, Windemere Apartments Limited Partnership, Windemere I Limited Partnership, and Burlington Construction, Defendants-Appellees, and City of Ann Arbor, Defendant. Docket No. 182054. Court of Appeals of Michigan. Submitted October 1, 1996, at Detroit. Decided June 27, 1997, at 9:00 a.m. Released for Publication October 1, 1997. *849 Hertz, Schram & Saretsky, P.C. by Steve J. Weiss and Miles D. Hart, Bloomfield Hills, for Traver Lakes Community Maintenance Ass'n. Vandeveer Garzia, P.C. by Leonard A. Krzyzaniak, Jr., and Christine A. Fischer, Detroit, for Burlington Construction. Plunkett & Cooney, P.C. by Christine D. Oldani, Robert H. Martin, and Brian McGorisk, Detroit, for Douglas Co. Pedersen, Keenan, King, Waschsberg & Andrzejak by Daniel P. King, Farmington Hills, for Windemere I Ltd. Partnership. Before HOLBROOK, P.J., and WHITE and LATREILLE [*], JJ. *848 HOLBROOK, Presiding Judge. In this case alleging negligence and trespass, plaintiff appeals by leave granted from a circuit court order granting summary disposition to defendants[1] on the basis that plaintiffs claims were time-barred under the applicable statute of limitations, MCR 2.116(C)(7), and denying plaintiffs motion to amend to add a nuisance claim. We affirm in part, reverse in part, and remand for further proceedings. Windemere I Limited Partnership owned and constructed the Windemere Apartment complex in Ann Arbor in the late 1980s. The Douglas Company was the general contractor and Burlington Construction was a subcontractor for the project. The complex was built near Traver Lakes, a residential community developed in the 1970s and comprised of apartments, townhouses, and common areas. A series of connected ponds provide for *850 storm and ground water discharge from the Traver Lakes community and connect it with Ann Arbor's city storm water drainage and septic system. Plaintiff Traver Lakes Community Maintenance Association was formed to oversee and coordinate the upkeep and maintenance of the Traver Lakes community. During and after construction of the Windemere Apartment complex, excessive amounts of silt and sediment flowed from the construction site into the Traver Lakes pond system, causing a build-up of sediment in the ponds and decreased water flow through the system. Plaintiff filed this lawsuit in September 1993, alleging that defendants had installed ineffective or insufficient erosion control measures in construction of the apartment complex and that it had expended approximately $200,000 to clean its pond system in 1992 and that this process would have to be repeated every five to ten years. Plaintiffs complaint alleged separate counts of negligence and trespass against defendants Windemere, Douglas, and Burlington. Defendant Windemere moved for summary disposition on the basis of its affirmative defense that the period of limitation had run. Defendants Douglas and Burlington joined in Windemere's motion. Plaintiff responded and also moved for leave to amend its complaint to add a count of nuisance. The trial court granted defendants' motion for summary disposition and denied plaintiffs motion for leave to amend its complaint. The court held that the proposed amendment was untimely and that adding a nuisance count would be futile because no evidence had been produced to show that defendants exercised possession or control of the pond system. Plaintiff appeals. Plaintiff first argues that summary disposition of its claim of ordinary negligence was granted improperly. When reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts as true the plaintiffs well-pleaded allegations and construes them in the plaintiffs favor. Huron Tool & Engineering Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 376-377, 532 N.W.2d 541 (1995). To determine whether a genuine issue of material fact exists, we look to the pleadings, affidavits, and other documentary evidence submitted by the parties. Where a material factual dispute exists such that factual development could provide a basis for recovery, summary disposition is inappropriate. Otherwise, where no material facts are in dispute, this Court may decide the question as a matter of law. Moll v. Abbott Laboratories, 444 Mich. 1, 26, 506 N.W.2d 816 (1993). Here, plaintiffs claim of ordinary negligence accrued at the latest by September 1988, when plaintiff became aware that silt and sediment were coming from the Windemere Apartment project. Given that the claim accrued more than three years before plaintiff filed its complaint, plaintiffs negligence claim is time-barred. See M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8); M.C.L. § 600.5827; M.S.A. § 27A.5827. To avert this result, however, plaintiff argues that the continuing-wrongful-acts doctrine operates to toll the running of the period of limitation. We disagree. In Horvath v. Delida, 213 Mich.App. 620, 627, 540 N.W.2d 760 (1995), this Court held that the continuing-wrongfulacts doctrine is "established by continual tortious acts, not by continual harmful effects from an original, completed act." In that case, the plaintiffs' cause of action was based on the defendants' negligent dredging of an adjoining marshy lagoon; it was not based on claims of nuisance or trespass. Id. at 627, n. 2, 540 N.W.2d 760. Indeed, we expressly noted that Michigan courts have not recognized a cause of action for continuing negligence. Id. Here, plaintiffs complaint alleged that defendants' failure to install sufficient erosion control measures during construction constituted the "predicate negligent act" that has resulted in continuing harmful effects to plaintiffs pond system. As alleged, plaintiffs negligence claim does not come within the ambit of the continuingwrongful-acts doctrine. Id. at 627-628, 540 N.W.2d 760. Accordingly, the trial court correctly held that plaintiffs negligence claim against defendant Windemere was time-barred. We therefore affirm the order granting summary disposition of this claim in favor of defendant Windemere. With regard to plaintiffs negligence claim against defendants Douglas and Burlington, *851 the parties and the trial court also applied the three-year limitation period applicable to injuries to property. This was error. The applicable statute of limitation for claims of ordinary negligence against contractors, M.C.L. § 600.5839; M.S.A. § 27A.5839,[2] provides for a six-year period of limitation. Smith v. Quality Constr. Co., 200 Mich.App. 297, 503 N.W.2d 753 (1993). Section 5839(1) has been construed as both a statute of limitation and a statute of repose. O'Brien v. Hazelet & Erdal, 410 Mich. 1, 15, 299 N.W.2d 336 (1980); Smith, supra at 300-301, 503 N.W.2d 753. For ordinary negligence actions [against contractors] that accrue within six years from the 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 period of limitation. When more than six years has elapsed from the date of occupancy, use, or acceptance before an injury is sustained, the statute is one of repose that prevents a cause of action from ever accruing. Where the injury occurs after the passage of the applicable time period, the injured party "literally has no cause of action. The harm that has been done is damnum absque injuria—a wrong for which the law affords no redress." [Id. at 301, 503 N.W.2d 753 (citations omitted).] Here, it is undisputed that plaintiff filed its complaint within six years from the occupancy, use, or acceptance of the completed construction project. Accordingly, the trial court erred in granting summary disposition of plaintiffs negligence claim against defendants Douglas and Burlington on the basis that the period of limitation had run. In addition to its negligence claim, plaintiff also had alleged a trespass claim and, in the face of defendants' motions for summary disposition alleging that the period of limitation had run, plaintiff had moved for leave to file an amended complaint, adding a count of nuisance. Although the trial court's order did not specifically address plaintiffs trespass claim, it is clear that the court's grant of summary disposition included this claim. The trial court also denied plaintiffs motion to amend on grounds of undue delay and futility. On appeal, we conclude that issues of fact remain regarding the viability of plaintiffs trespass claim and that the court's stated reasons for denying the motion to amend constituted an abuse of discretion. Thus, we reverse and remand for further proceedings regarding these claims. First, with respect to plaintiffs motion for leave to amend to add a count of nuisance, we agree with plaintiff that the trial court abused its discretion in finding that plaintiff had acted with undue delay. A court should freely grant leave to amend a complaint when justice so requires. MCR 2.118(A)(2). The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result. Amendment is generally a matter of right rather than grace, and ordinarily should be denied only for particularized reasons, such as undue prejudice to the opposing party, undue delay, bad faith or dilatory motive on the movant's part, or where the amendment would be futile. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 659, 213 N.W.2d 134 (1973). Delay without more, such as undue prejudice, does not mandate the denial of a motion to amend. Davis v. *852 Chrysler Corp., 151 Mich.App. 463, 473-474, 391 N.W.2d 376 (1986). The prejudice justifying the denial of a motion to amend is not prejudice arising from the amendment's effect on the result of trial or loss of a meritorious claim or defense, but is, rather, prejudice preventing a party from having a fair trial. Fyke, supra at 657-658, 213 N.W.2d 134; Davis, supra at 474, 391 N.W.2d 376. Indeed, the remedy for undue delay "is not to deny the amendment ... but, rather, the remedy is to sanction the offending party to reimburse the opponent for the additional expenses and attorney fees incurred because of the inexcusable delay in requesting an amendment. MCR 2.118(A)(3)." Stanke v. State Farm Mut. Automobile Ins. Co., 200 Mich.App. 307, 321, 503 N.W.2d 758 (1993). Here, there was no justification for the trial court's finding of undue delay. Plaintiffs motion for leave to file an amended complaint was filed 2)6 months before the close of discovery, 3^ months before mediation was scheduled, and five months before trial was to begin. An amendment was entirely proper at this stage of the litigation. Second, we find that the trial court erred in granting summary disposition of plaintiffs trespass claim and abused its discretion in denying plaintiffs motion for leave to amend on grounds of futility because defendants did not own or control the pond system. At the outset, we recognize that claims of trespass and nuisance are difficult to distinguish and include overlapping concepts. However, the essential difference has been stated as follows: "`[Tjrespass is an invasion of the plaintiffs interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it.'" Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 151, 422 N.W.2d 205 (1988), quoting Prosser & Keeton, Torts (5th ed), § 87, p. 622. See also Continental Paper & Supply Co., Inc. v. Detroit, 451 Mich. 162, 545 N.W.2d 657 (1996). Unlike a claim of negligence, the defendant's intent in causing a trespass or a nuisance is generally irrelevant. Hadfield, supra at 161, 422 N.W.2d 205; Bronson v. Oscoda Twp. (On Second Remand), 188 Mich.App. 679, 682, 470 N.W.2d 688 (1991). In Hadfield, supra at 169, 422 N.W.2d 205, our Supreme Court recognized a cause of action for "trespassory nuisance" where a plaintiff shows condition (nuisance or trespass), cause (physical intrusion), and causation or control by the defendant. Under the facts of that case, the Court found a "trespassory nuisance" where ineffective county drains filled with mud and overflowed, flooding the plaintiffs farm fields. Comparatively, in this case, plaintiff has alleged that defendants installed ineffective soil erosion controls during construction of the apartment complex, resulting in excess silt flowing into plaintiffs pond system. As such, we construe plaintiffs factual allegations as including elements of both a trespass and a private nuisance. Liability for nuisance may be imposed where (1) the defendant has created the nuisance, (2) the defendant owned or controlled the property from which the nuisance arose, or (3) the defendant employed another to do work that he knew was likely to create a nuisance. Continental Paper, supra at 165, n. 7, 545 N.W.2d 657, citing Baker v. Waste Management of Michigan, Inc., 208 Mich.App. 602, 606, 528 N.W.2d 835 (1995). Here, plaintiff has alleged sufficient facts that defendants Windemere, Douglas, and Burlington either owned the land from which the excess silt was coming or that they controlled the implementation of soil erosion controls during construction of the apartment complex. Accordingly, the trial court's dismissal of plaintiffs trespass claim and denial of plaintiffs motion to amend on grounds of futility was erroneous. Finally, defendants argue that plaintiffs trespass claim and proposed nuisance claim were time-barred under the applicable three-year period of limitation for damage to property, M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). Plaintiff counters that its claim is not time-barred because the excess silt flowing into the pond system constitutes a continuing trespass/nuisance. Unlike negligence, "[n]uisance is a condition and not an act or failure to act." Hobrla v. Glass, 143 Mich.App. 616, 630, 372 N.W.2d 630 (1985), quoting 58 Am. Jur. 2d, Nuisances, *853 § 3, p. 557.[3] In addition, unlike in a negligence claim, liability for trespass may be imposed regardless of the defendant's negligence or intentional conduct. Hadfield, supra. Thus, in reviewing plaintiffs damages claim for trespass/nuisance, we must focus our inquiry on the reasonableness of the interference with plaintiffs property, not the reasonableness of defendants' conduct in creating or maintaining the interference. See Prosser & Keeton, Torts (5th ed.), § 87, pp. 622-623. Where a trespass or nuisance is alleged to have continued during the limitation period, recovery is not barred. Defnet v. Detroit, 327 Mich. 254, 258, 41 N.W.2d 539 (1950) (trespass); Moore v. Pontiac, 143 Mich.App. 610, 614, 372 N.W.2d 627 (1985) (nuisance). The damages recoverable under a continuing trespass/nuisance claim generally depends upon whether the interference with the plaintiffs property is permanent or temporary. See Phelps v. Detroit, 120 Mich. 447, 451-55, 79 N.W. 640 (1899). The rules for making such a determination are summarized in 58 Am. Jur. 2d, Nuisances, §§ 273-275, pp. 875-878: An action in damages may be maintained for the creation of a nuisance and a subsequent and separate action may be maintained for the continuance of such nuisance. The determination of whether a single right of action or successive rights are created by a nuisance for damages depends primarily upon whether the cause of injury is permanent or temporary.... The question generally is one of fact for the jury. * * * * * * If injuries from a nuisance are of a permanent character and go to the entire value of the estate, there can be but one action, and all damages—past, present, and future—are recoverable therein; in such a case, one recovery is a grant or license to continue the nuisance, and there can be no second recovery for its continuance.... Where the injury from the alleged nuisance is temporary in its nature, or is of a continuing or recurring character, the damages are ordinarily regarded as continuing, and one recovery against the wrongdoer is not a bar to successive actions for damages thereafter accruing from the same wrong. In such a case, every day's continuance is a new nuisance.... That is, where a nuisance is temporary, damages to property affected by the nuisance are recurrent and may be recovered from time to time until the nuisance is abated. Here, a question of fact exists whether the alleged trespass/nuisance involving plaintiffs pond system was temporary, and therefore abatable by reasonable curative or remedial action, or whether it was permanent in nature, and therefore nonabatable. Where, as here, a question of fact exists regarding the temporary or permanent nature of the nuisance and whether, as a consequence, the claim is time-barred under M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8), these issues should be submitted to a jury. Accordingly, we reverse and remand for further proceedings regarding plaintiffs trespass and proposed nuisance claims. Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We retain no further jurisdiction. No taxable costs are awarded pursuant to MCR 7.219, because neither party prevailed in full. S.J. LATREILLE, J., concurred. WHITE, Judge (concurring in part and dissenting in part). I concur in the conclusion that the negligence claim against Windemere Apartments is time-barred. I also concur in the conclusion that the circuit court abused its discretion *854 in denying plaintiffs motion to amend its complaint to add a nuisance claim and improperly dismissed plaintiffs trespass claims. I respectfully disagree, however, with the majority's resolution of plaintiffs negligence claims against The Douglas Company and Burlington Construction. The majority concludes that plaintiffs claims against Douglas and Burlington are not time-barred because the six-year period of limitation under M.C.L. § 600.5839; M.S.A. § 27A.5839 applies, and not the three-year period of limitation under M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8); M.C.L. § 600.5827; M.S.A. § 27A.5827. Under the circumstances, where plaintiff did not assert the applicability of the six-year period of limitation in the circuit court and does not assert its applicability on appeal, so that defendants have never addressed the applicability of the statute, I would not reach the question at this time. While this Court may choose to raise this issue of law on its own, it should give defendants an opportunity to respond, either by requesting additional briefing or remanding the matter to the circuit court. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] Defendant Windemere Apartments Limited Partnership has since been dismissed without prejudice pursuant to MCR 2.102(E)(2), and defendant City of Ann Arbor is not a party to this appeal. [2] Section 5839(1) of the Revised Judicature Act, M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1), provides: 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 the improvement, or against any contractor making the improvement, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement, or 1 year after the defect is discovered or should have been discovered, provided that the defect constitutes the proximate cause of the injury or damage for which the action is brought and is the result of gross negligence on the part of the contractor or licensed architect or professional engineer. However, no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement. [3] See also Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970), in which our Supreme Court distinguished nuisance actions from other torts as follows: Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.