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### STATE OF MICHIGAN

COURT OF APPEALS

RICHARD HOWARD, R EED HOWARD, DON K. REED, and GERALDINE REED,

Plaintiffs-Appellants, UNPUBLISHED July 7, 2016

V No. 325812 Allegan Circuit Court GLENN HAVEN SHORES ASSOCIATION, LC No. 13-052490-CH

Defendant-Appellee.

Before: M URPHY , P.J., and W ILDER and B ORRELLO , JJ.

W ILDER

, J. ( concurring ).

While I concur in the result reached by the majority, I write separately to offer differing reasoning. Although much of the parties’ briefing, and the maj ority’s analysis, focuses on the “continuing violations” doctrine—also known as the “continuing tort” or “continuing wrong” doctrine—that issue is not dispositive here because the continu ing violations doctrine was abrogated by our Supreme Court’s decision in Garg v Macomb Co Community Mental Health

Servs , 472 Mich 263, 290; 696 NW2d 646 (2005) (“We conclude that the ‘continuing violations’ doctrine is contrary to the la nguage of [MCL 600.]5805 and hold , therefore, that the doctrine has no continued place in the jurispr udence of this state.”); see a lso Marilyn Froling Revocable Living Trust v Bloomfiel d Hills Country Club , 283 Mich App 264, 282-287; 769 NW2d 234 (2009) (noting that, since Garg , the state of the law in this area has become “hopelessly confused”).

In light of the fact that the co ntinuing violati ons doctrine c annot save plaintiffs’ negligence and nuisance claims if they were filed untimely, the central question before us is whether plaintiffs’ claims are timely under the applicable thre e-year statute of limitations set forth by MCL 600.5805(10). In other words, the germane 1 inquiry is whether plaintiffs’ claims accrued in the three years before they filed suit, i.e., on or after October 28, 2010. Under MCL 600.5827, a claim accrues when “the wrong upon which the claim is based was done,” not when the resulting “damage”—here, erosion—occurred.

1 Because the parties have failed to raise it on appeal, the que stion of whether the Association owed plaintiffs a discernible legal duty is not before us.-2- Here, the “wrong” alleged by plaintiffs—negligent maintenance (i.e., failure to maintain)—is a negligent omission, not an affirmative negligent act. Given sufficient evidence, it is easy to pinpoint the timing of a negligent act because an act, by its very nature, must occur at some specific point in time. An omission, on the other hand , is something that does not occur. Accordingly, it is often difficult to establish precisely when an omission “was done” under MCL

600.5827.

Nevertheless, it well-settled that “a discrete negligent act or omission” can be used “for purposes of determining the accru al date” of a given claim, see , e.g., Kincaid v Cardwell , 300 Mich App 513, 528; 834 NW2d 122 (2013) (emphasis added), and he re plaintiffs have alleged a discrete negligent omission that occurred—at least potentially— on or after October 28, 2010. Thus, I agree with the outcome the majority reaches. On this r ecord, the trial court erred by granting the Association summa ry disposition under MCR 2.116(C) (7).

In their first amended complaint, plaintiffs alleged, “Despite numerous requests over the years as the erosion continued to erode, the [A]ssociation refused to do anything about controlling the erosion that was clearly occurring[.]” (Emphas is added.) Plaintiffs further alleged, “Since the bluff/ravine continues to erode to this date , it has eaten into the [plaintiffs’] private property and destroyed large portions of their lots to the extent that they have been deemed unbuildable.” (Emphasis added.)

“Generally, the burden is on the defendant who relies on a sta tute of limitations defense to prove facts that bring the case within the statute,” and whe n deciding the issue, the “court will accept the allegations stated in the plaintiff's complaint as t rue unless contradicted by documentary evidence.” Id. at 522 (emphasis added). As the majority notes, there is a de arth of record evidence regarding the tim ing of the Association’s alleg ed negligent omissions. Thus, the Association has not carried its burden under MCR 2.116(C)(7); i t has not presented documentary evidence proving the facts necessa ry to bring plaintiffs’ claim s within the statute of limitations. In other words, the Association has failed to prove in a manner sufficient to warrant summary disposition that its alleged negligent omission—i.e., refusal “ to do anything about controlling the erosion”—occurred only before October 28, 2010, rather than on or after that date. For that reason, I concur in the result reached by the majority.

/s/ Kurtis T. Wilder