exceed fifteen minutes per side mr jermyn for the correct very good ok in this court i'm sure your honour's are gomez the michigan legislature and sound public policy command that a new act resulting in a new injury creates a new cause of action with a new accrual date and since a cause of action arises when both vote last conduct and the first subsequent resulting injury occur if that new cause of action occurs within the limitations period then the plaintiffs are entitled to the benefit of the the the elements of negligence what with judge donald i think i hope i think i'm correct that you would like to be specific what the acts were short it was pollution from the plant is that right but the act well the case is about what we call refinery contaminants so all sorts of pollution noise odors but i think if you look at nuisance law we need to break it out a little bit to understand what are the acts and what are the injuries because i think that's where i'm confident that's where the district court went wrong the district court defined nuisance as the operation of a refinery that is not correct under nuisance law nuisance requires an act and a resulting injury the act in this case is the operation of  about noise pollution the other thing then that well the act is the five hundred employees going in every single day putting in new raw product that refines new chemicals that creates new pollution that really mean that same release is right they go in they flip a switch or they pull something and it goes down to the community and then the injury is when it lands on people's properties when it wakes them up in the middle of the night do you know why and the interference of the few years those are the things that we plead in the complaint those things are not elements noise odors fears those are not elements of a nuisance and they're not elements of negligence those are the the facts that support the claim that people's property or people's rights to their use enjoyment of property have been interfered with on the limitations issues so i gather you're seeking recovery only for the releases made within three years of the filing of your complaint is that correct that's that's correct or are it's the it's result it's the releases of the past three years resulting from the operation of the refinery is the injury and that's it is the nuisance and that's not the nuisance it's not until there's an actionable harm that the contamination lands on people's properties that you have the actionable nuisance so you not counsel need to struggle with the the the continuing wrong theory that michigan now does not embrace i don't think we need that and you know why i'm so asking this and you  avoid speaking about it and you carefully frame your complaint but the plants been there forever long long time your clients have lived there a long long time the change that starts the the statute of limitations clock over for your clients is in your mind what well it's a few things first of all there's nothing on the record there's nothing in the complaint that affirmatively pleads that these plaintiffs suffered some harm more than three years ago we know nothing about the operations of the refinery we know nothing about where the contamination from that refinery travelled we don't know if it went north where they went south where they were in east west whether it affected these people at all without a harm there's no actionable nuisance and there's nothing i guess i don't i didn't scrutinise the complaint in that in that particular regard but i assume that the complaint says your clients have lived at that address since for however many years more than more than four they do but that speaks nothing in the complaint should they say that we do know that correct and that the and we also i think they've said the doesn't act like some type of a wind up toy is the term we used in in the in the briefs it requires the reason marathon has five hundred employees that make decisions and and and engage in discrete acts every day that create new product and result the new pollution is because it requires human activity the analogy i think of is bullying if someone goes into high school on day one for your high school and their bullied in the first year and they're kicked and punched one day and there they have a broken arm the next day and their feelings are hurt the next year in the fourth year if this continues and i'm beaten him and my child's beaten up and and is put in a coma can i not suit a stop that bullying in the fourth year each day is a new act even though the bullying is continuous in the sense that traffic moving on a highway is continuous or airlines fly airplanes continuously i mean if you saw damages you could only get damages for the bowling from on a new act with a new injury or any michigan cases you would point to in which the court kind of dice is it up the way you're suggesting i e the courts are right this bad act stuff been going on for more than three years you can't go back to day one but you can go back whatever the limitations sure first i think guarding goma say that exactly and the cases the district court cites and and the  full intrust case well those cases are actually in harmony because all of the cases that the district court relied on were cases where there was a discreet act before the time the limitations period ran and all that was was happening the alleged harm of the continuing harmful effects defining the act in the nuisance as the operation of the refinery that was certainly one error because the mere operation of a refinery is not a nuisance we know that the second thing is  assume that the operations were continuous and continuous in the sense that they flipped the switch eighty five years ago and everything has followed as a result of that single act outside of the limitations period and we know that's not how or finery works we know nothing works that way there's there's no such thing as the perpetual motion machine but on the timing issue i mean i'm just trying to understand what you think is the discords mistake as i think that's the error of law i don't think that the district court should have should have said that i think that that gargan goma's tell us it couldn't have done that i don't know how the district court arrived at that  affirmatively plead that that the course of action accrued outside of the limitations period in the courts are clear not only in the circuit the u s supreme court across the country a district court specifically asked you in an argument when this stuff happened you really need to answer that question i mean just you know i'm not trying to be a hard time but the court i understand your point but the court's allowed to ask you know a question about your allegations and i think you know i think the court should probably give any answer the answer is every day when there's a new act and new contamination comes out the answer is every day because that's how refinery truly operates so that's the answer you can say it happened on you know september second two thousand and fourteen you  just can't cannot do that until you get into discovery and you learn about what's going on what when you get back up you'll tell us the difference between happening every day and it continuing to run ok thank you dismissed this complaint as a matter of law and we would request that this court affirm the first point is what forms the basis of the plaintiff's claim and the district court asked plaintiff's counsel that question and i quote from the transcript the says doc thirty eight page id two eighty eight the court says all right ok so do you agree that the new set that the alleged nuisance or negligent acts to your points judge donald and judge cook as alleged in your complaint emanate from the operation of the detroit refinery mr garman answers yes we do so the complaint when you look at it it talks about negligence as being the operation of the detroit refinery in fact paragraph two you don't have to go far in terms of relieve the release of all these different things it does talk about release judge catholics but it also says continued to result in the release i don't really know why this particular matters the distinction we're talking about in the guard case itself in michigan i thought the court made the distinction that mr g seeking here namely you you can't sue for in and in an instance where you have acts that have been continuous the same thing kind of basically going on over time  the guard case and correct me if i'm wrong seems to say to you you can sue for the acts that occurred within the limitations period but you cannot invoke the continuing wrongs doctrine to go back to be warned so the guard case involved a specific statute and the elements of the statute did say in that case and that's the same as the as the gomez case where we're talking about a specific environmental statute that was allegedly violated the elements of those statutes say and guarding it was the alleged discrimination and so the court said if there was acts of discrimination if you recall your honor in the guard case there were there was a protected act that occurred back long ago the court recognized there was one protected act act and what the carcase said was the supervisors had changed over  time and if you look at that protected act were there violations within the limitations period but they what they were saying as were their new acts was there something new and different was there some type of discrimination that appeared action every time but i do disagree with that donald and let me tell you why if you go back to the line of michigan cases that were around when we had the continuing wrongs doctrine so you look at the cases and the types of cases in which the court said ok this is a continuing rotten so it's not barred by the statute of limitations the court looked in the open wood homeowners association versus ford motor company those were apparation of plants the ford motor company plant the marathon refinery and edward levy plant that was giving off alleged pollutants and the court held that the only reason at that nine hundred seventy seven time that that case was on time barred is that those were continual acts that served to told the statute of limitations i would also cite for you the more verses which that from from the plane of situation here there is no distinguishing judge cook that's that is the plaintiff situation here except that the continuing wrong stack transcends the time of that case has been a botched but the continuing wrongs doctrine in michigan as i understand it just let you go back to day one it's not necessary for you to go back to events that occurred within the limitations actually your honor i would disagree the reason that card about the continuing wrongs tractor and as for that very reason if you were to accept plaintiff's argument as true every business that continued to operate would always be subject to some type of tort within the past three years or so as long as they continue to all that are engaging i mean let's say your neighbor is and is engaging in some just really terrible news and for whatever you know maybe you're traveling a lot and you don't do anything about it you don't bring suit for  some like really smelly thing in a creek that runs through both of your backyard she's been doing it for three years now you have some damages to homes because of the vapors or something is it really the michigan that because you tried to work it out amicably for some period of time that now you can't you can't recover anything that tomorrow's release your claim for tomorrow's release is it is time barred is that the law in michigan as opposed to your claim for release is three years plus one day ago so the law in michigan is very clear that claim a cruise at the time of the act plus the first injury i mean so they have a claim for stuff that hasn't even happened yet for releases that haven't happened yet i would i would distinguish your hypothetical on the basis that you may have a neighbor who does something once in a while that ok every day constantly continuous same time every day same amount every day does the same thing every day i would say that the time that you as a homeowner are first injured is when your claim occurs you have three years from that date so to file a claim and that would claim for the stuff you dumps in the creek tomorrow this time board if it's the same stuff and he's been doing this every single day that's that's the feeling trust that's the action to say that tomorrow's act is already happened and that it's the same as you know the number of years ago that's just a fiction but it isn't because it's that is a continuing tort so if you have if and i would distinguish it if you had a contract or you had something point there i'm not i'm just i'm drawing a more talking nuisance here counselors too and i would say that yes what we would contend is that the nuisance that is alleged in this case is the condition of the refinery that's the nuisance that has been alleged uses the word release well and they use the release on the open homeowners association and and they use i mean i think this is my second case it was planned ok in the first one was really voters you know vapors all this bad stuff that's they get to write their complaint and that's what they said and those things are happening each day if and if you were to apply that judge kathleen then when what the statute of limitations let's say hypothetically well as for each act each release you know it ends three years later and i mean you make the argument that this would render what they basically seem to have done a guard would render the limitations period meaningless but that's that's not true let's say they've been doing the plant's been doing this for twenty years w seventeen years of protection and that isn't meaningless and then if if some hypothetical operator stops releasing the stuff they're going to get the limitations and the landfill was right across the street from homeowners people who bought their property before the landfill went there and the city expanded the landfill and they did other things the land fell and in that case the wrongs no continuing ro court specifically wouldn't be a new wrong i mean we're really talking about bets concept here and it's important to think whether that expansion would not you would say the law wouldn't i could see that to be a new wrong i've no i wouldn't necessarily say that your honor but i would say that the operation of the landfill itself is something that the court held including these acts was a continuing nuisance that's how the that's how michigan law has defined it so what what was the upshot there terms of was there a limitations if there was a limitations argument and the only reason that the court held that the statute this was a nineteen eighty five case that the statute had not expired is because it survived under the continuing expired as to stuff that happened on day one probably the continuing wrongs doctors understand is something it was a doctrine that's meant to benefit plaintiffs it was a shield for them that that let them go back to day one rather than be confined within the limitations period and if you take that doctrine away it's not then a sword that cuts them down for all time it's it's just you no longer have that benefit of going extra far back isn't a case that explains it goes back and it looks at ok what was a continuing wrong at the time that we had the continuing run factor and what was that defined as how how was that defined and once we have polished that doctrine how is it going to be applied because the fact of the matter is it's very clear in michigan under the supreme court decision even the henry vs dow chemical decision the claim starts the clock starts at the time of the condition plus the first injury not subsequent injuries were not even talking about injury but injury to the disclosure of  m actual pain injury health health i don't know what the injuries are here they say it's just they're a little amorphous so i know that's the next issue but somebody who's cancer developed and  is disclosed now you would that be of different starting point under the law under the law yes judge could diagnosed and all of a sudden you go three years back if you suffer when you first realize that injury i think the law makes it clear it's the first injury it's the act plus the the first injury and that's when the clock starts so then they would have three years if their first entered and to judge kaplan jizz point you know if you're away from your land and somebody is doing something and it's not really interesting your land i apologize but and so with the little bit of time that i have i would say that while this is an eighty nine paragraph complaint which is not which is longer going to interrupt you because you have no time i would if i could  residents living near the marathon plant can bring a cause of action for for the nuisance under your analysis i would not say that your honor or who could i would say  if if someone first experienced an injury so say somebody say somebody moved in into the area and they had not experienced that noxious they found it actually under the diagnosed with anything they just found to be noxious by everybody there no doubt does ok but so what you would see answer so the answer is when they first experience the injury but the case that we have here is the only allegation of injury if you and we are required to look at the of the complaint which judge cracks did and i believe that the only reasonable conclusion that he came to is the only injury they said is that the they own property near the refinery and that's what they're alleging is injury and we know that they've on that property for grown i would say if there's if there is something something new that occurs if there if there is some instance say for example there is a specific and i think that the plaintiff cited it there was a specific also say that in this particular complaint that's never alleged it in fact we alleged they alleged continuous and i'm going and leave but what two one one conclusion which is this is a continuing tort that's all i want to thank you   first act first injury the law trust is very clear and it's progeny it's last act plus the first resulting injury so you get to go back to the last act and the first corresponding injury and in this case we allege wrongful emissions as the act we allege them we didn't even have to but we allege in the present tense we allege an invasion that's a new act with a new emission and a new injury so a new thing is happening every day when someone goes in there and pull that lever and poof all that contamination comes out and lands on plaintiff's property that contamination it's a femoral the noise is ephemeral it was it was the noise that was here yesterday isn't here today it's a new act and a new injury first point second point is gomez rejects this concept of it's the same stuff that they're putting in the defendants and gomez argued well we're just putting the same stuff into the land so it's not a new injury gomer says no that's that's not the way it works and there's no precedent that the defendant side or the district court side or that we're aware of that says when you're when you just put the same stuff in it's it's a continuation it's not  outside of the limitations period they installed the drainage ditch outside the limitations period and then they just left it on people's property and then there was flooding and damage to the property but that were currying haram which from the original act there wasn't a new act and a new resulting injured there was only one act by the defendant yack had effects that lasted a long time you can't sue her and that happened because of the limitations d the law will will permit the michigan law will permit every resident in within a mile let's say they're all subject to every resident within a mile to sue for every three years that they any time they want to pull the trigger just like pull the lever they can sue for three years of damages if there's if there's a new act and a everybody experiences the one year is correct everyone everyone could sue when they're harmed from a new act that's my point you and i would have to use your usual theory your neighbor this neighbor emissions they can reduce their emissions there are things they could do that are not in the record before the court now that all that may or may not will find on discovery allow them to refer operate the refinery in a way that doesn't interfere with people's property with their ability to sleep with their ability to have a barbecue and have their kids play on the lawn so the argument that the defendants are advancing the public policy consequences of the district court's opinion if it were to be extended and what the defense argued for is disastrous not just to lead to the rights of landowners rural landowners who live near hog farms in spray fields of of manure pits to to a city dwellers who live near a parade of horribles i mean but but it but it is important for for for all people that this at the district's opinion be reversed and the last point your honour's is what we found out yesterday that the mission court of appeals came down with with the henry decision again  it's called henry three it wasn't related to the statute of limitations argument on the continuing wrongs doctrine but it did reiterate the point that that there are opinion in due course freesheet you did a fine job on your first argument thank you and