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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ESTATE OF SUSAN K. ARRINGTON, by CoPersonal Representatives SARA ARRINGTON 

LACAVA and MATTHEW ARRINGTON

Plaintiff-Appellant,

UNPUBLISHED

July 20, 2017

v No. 332523

Lake Circuit Court

COUNTY OF LAKE, PALOMA INDUSTRIES 

OF NAGOYA JAPAN, RHEEM 

MANUFACTURING, EMERSON ELECTRIC 

COMPANY, FISHER CONTROLS 

INTERNATIONAL, INC., GRUNDFOS PUMPS 

CORP, TJERNLUND PRODUCTS, INC., A O 

SMITH CORP, REGAL BELOIT ELECTRIC 

MOTORS, INC., MICHAEL ELLIS, STEPHEN R. 

BOEHRINGER, TRECHA BROTHERS SUPPLY 

COMPANY, INC., GAS & LUBE EQUIPMENT 

REPAIR, INC., RESIDENTIAL IMAGES, INC., 

FARM BUREAU INSURANCE COMPANY OF 

MICHIGAN, MICHAEL DEAN GREEN, GREEN 

CONSTRUCTION, CRYSTAL FLASH LIMITED 

PARTNERSHIP OF MICHIGAN, 

LC No. 14-008636-NO

Defendants, 

and

PHELPS PLUMBING & HEATING, INC., NOCHE-MO, INC., HERBERT B. PHELPS, also 

known as BRADLEY PHELPS, DAVID A. 

SHARLOW and KEVIN G. ELLIOT,

Defendants-Appellees.

Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.
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Plaintiff appeals as of right the trial court’s order granting summary disposition in favor 

of defendants Herbert B. Phelps, also known as Bradley Phelps,1 No-Che-Mo, Inc., and Phelps 

Plumbing and Heating, Inc.

2

 We affirm.

On appeal, plaintiff first argues that the trial court erred in concluding that plaintiff’s 

cause of action was time-barred by MCL 600.5839. We disagree.

Where it is clear from the record that the trial court’s basis for granting summary 

disposition was that plaintiff’s action was barred by the applicable statute of limitations,3 we 

review the trial court’s decision as having granted summary disposition pursuant to MCR 

2.116(C)(7). 

Pursuant to MCR 2.116(C)(7), a party may move to dismiss a claim on the 

grounds that the claim is barred by the applicable statute of limitations. The 

question whether a cause of action is barred by the applicable statute of 

limitations is one of law, which this Court reviews de novo. This Court also 

reviews de novo a trial court’s decision regarding a summary disposition motion.

In reviewing whether a motion under MCR 2.116(C)(7) was properly decided, we 

consider all documentary evidence and accept the complaint as factually accurate 

unless affidavits or other appropriate documents specifically contradict it. [Frank 

v Linkner, ___ Mich ___, ____; 894 NW2d 574 (2017) (Docket No. 151888); slip 

op at 5 (citations and quotation marks omitted).

The applicable statute of limitations, MCL 600.5839(1) provides, in pertinent part, as 

follows:

A person shall not maintain an action to recover damages for injury to 

property, real or personal, or for bodily injury or wrongful death, arising out of 

the defective or unsafe condition of an improvement to real property, or an 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, unless the action is commenced 

within either of the following periods:

 1 Herbert B. Phelps and H. Bradley Phelps are the same person. For clarity of analysis, we will 

refer to this individual as “Phelps.” We will refer to defendants collectively as “defendants” in 

our analysis unless reference to an individual defendant is necessary. 

2 David A. Sharlow and Kevin G. Elliott were dismissed from the litigation by an order of the 

trial court entered March 15, 2016. In their briefs on appeal, the parties note that all other 

defendants were also dismissed from this litigation in the trial court and are not parties to this 

appeal. 

3 Plaintiff initiated its lawsuit on March 17, 2014. 
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(a) Six years after the time of occupancy of the completed improvement, 

use, or acceptance of the improvement.

(b) If 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, 1 year after the defect 

is discovered or should have been discovered. However, an action to which this

subdivision applies shall not be maintained more than 10 years after the time of 

occupancy of the completed improvement, use, or acceptance of the 

improvement. [Emphasis added.]

“By enacting MCL 600.5839, the Legislature chose to limit the liability of architects, 

engineers, and contractors in order to relieve them of the potential burden of defending against 

lawsuits commenced long after an improvement was completed.” Caron v Cranbrook Ed 

Community, 298 Mich App 629, 636; 828 NW2d 99 (2012). Plaintiff does not dispute that 

defendants were “contractor[s]” as contemplated by MCL 600.5839(1), or that the work 

performed on plaintiff’s decedent’s property was “an improvement to real property” as set forth 

in the statute. More importantly, in its brief on appeal, plaintiff does not challenge the trial 

court’s application of MCL 600.5839(1) as the appropriate and governing statute of limitations. 

Instead, plaintiff focuses its arguments on appeal on challenging (1) the trial court’s 

determination with respect to when defendants last performed any work at plaintiff’s decedent’s 

home, (2) and how such a determination impacts the analysis of whether plaintiff’s action is 

time-barred. 

In Beauregard-Bezou v Pierce, 194 Mich App 388, 392-393; 487 NW2d 792 (1992), a 

panel of this Court, reviewing an earlier version of MCL 600.5839(1),4 considered the issue 

whether “[the] plaintiff’s claim was filed within six years of the time [the plaintiff] occupied, 

used or accepted the improvement” to her home, as contemplated by then MCL 600.5839(1).5 In 

that case, the plaintiff fell and fractured her hip on a staircase that the defendant residential 

building contractor had constructed in her home. Beauregard-Bezou, 194 Mich App at 390. In 

Beauregard-Bezou, the plaintiff conceded that she had occupied and used her home for more 

than six years before falling, but the plaintiff maintained that she had not “accepted” the 

improvement. Beauregard-Bezou, 194 Mich App at 392. The Beauregard-Bezou Court cited an 

earlier decision from this Court, Fennell v John J Nesbitt, Inc, 154 Mich App 644, 649; 398 

NW2d 481 (1986), stating, in pertinent part, as follows:

We do not read MCL 600.5839 as a “discovery” statute of limitations. 

Rather, we find that its operation is predicated upon the time of occupancy or use 

 4 As pertinent to this appeal, the substantive language at issue remains the same and has not been 

altered. 

5 The applicable statutory provision is now MCL 600.5839(1)(a). 
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or acceptance of the improvement. [Beauregard-Bezou, 194 Mich App at 392 

(emphasis in original).]6 

Specifically, the Beauregard-Bezou Court noted its agreement with the Fennell panel’s 

conclusion that “the operation of [then MCL 600.5839(1)] is predicated upon the time of 

occupancy, or use or acceptance[ ]” of the real property at issue. Beauregard-Bezou, 194 Mich 

App at 393. The Beauregard-Bezou Court ultimately rejected the plaintiff’s contention that “the 

period [of limitation] only begins to run at the time of the latest of the three contingencies [listed 

in the statutory language].” Id. at 393-394. 

In this case, the record reflects, and the parties do not dispute, that plaintiff’s decedent 

was issued a certificate of occupancy for her new home on September 6, 2005.7 Therefore, the 

six-year limitation period would have begun to run at “the time of occupancy of the completed 

improvement[.]” MCL 600.5839(1)(a). While the record is unclear with regard to when 

plaintiff’s decedent actually occupied the home, the record does not suggest it was anything but 

contemporaneous with the issuance of the certificate of occupancy. Plaintiff notes in its brief on 

appeal that defendants visited plaintiff’s new home on two separate occasions in January 2006 

and December 2006 to perform additional work and repairs on the heating system in plaintiff’s 

decedent’s home. According to plaintiff, the limitation period set forth in MCL 600.5839(1)(a) 

did not start to run until the latter of the two occasions, December 20, 2006, when additional 

work was completed on plaintiff’s decedent’s water heating system. In support of its argument,

plaintiff contends that in the time following the issuance of the certificate of occupancy on 

September 6, 2005, defendants “had an ongoing relationship with [plaintiff’s decedent] to 

maintain and supervise the heating system for years after it was installed.” 

We note that in his January 28, 2016 affidavit, Phelps, president of Phelps Plumbing and

Heating, Inc., averred that Phelps Plumbing and Heating, Inc. “made certain changes to the 

[heating] system that [plaintiff’s decedent] had requested[ ]” after the certificate of occupancy 

was issued. Specifically, plaintiff’s decedent informed Phelps Plumbing and Heating, Inc. on or 

about January 18, 2006 that a representative from Paloma, a company on whose behalf plaintiff’s 

decedent sold heating products, “wanted some piping for the boiler placed further apart.” The 

reason for the work was ostensibly to improve the efficiency of the heating system. The 

requested work was performed and plaintiff’s decedent was billed accordingly. The record also 

reflects that a service technician, Chuck Carmoney, visited plaintiff’s decedent’s home on 

December 20, 2006, on behalf of Phelps Plumbing and Heating, Inc., after plaintiff’s decedent 

contacted Phelps Plumbing and Heating, Inc. stating that her hot water system was not operative. 

When the service technician arrived at plaintiff’s decedent’s home, “the hot water system had 

already started working and therefore [Phelps Plumbing and Heating, Inc.] did not need to do 

anything to [the hot water system] at that time.” Therefore, on December 20, 2006, Phelps 

 6 While Fennell addressed a prior version of MCL 600.5839 that did not include a provision 

addressing gross negligence, this does not impact our analysis. 

7 From the record, it appears that the majority of the work performed by defendants was initiated 

in mid-to-late 2004 and carried over into the spring of 2005.
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Plumbing and Heating, Inc. “made no improvements to the water system and in fact did nothing 

to it[,]” and plaintiff’s decedent was merely charged $40 for a “service call[.]” It also appears 

from the record that a representative from Phelps Plumbing and Heating, Inc. visited plaintiff’s 

decedent’s home in October of 2008, apparently to perform additional work, but the specific 

nature of the work is unclear from the record. 

Even accepting plaintiff’s assertions that Phelps Plumbing and Heating, Inc. visited 

plaintiff’s decedent’s home in January 2006 and December 2006 to perform additional work on 

the heating system, the relevant statutory language clearly provides that any wrongful death 

action needed to be commenced “[s]ix years after the time of occupancy of the completed 

improvement, use or acceptance of the improvement.” MCL 600.5839(1)(a). From the record, it 

is clear that any subsequent visits Phelps Plumbing and Heating, Inc. made to plaintiff’s 

decedent’s home following the issuance of the certificate of occupancy on September 6, 2005 

were for repairs or service calls, and there is nothing in the record to indicate that these 

subsequent visits or any additional work performed impacted plaintiff’s decedent’s “use, or 

acceptance of the improvement.” MCL 600.5839(1)(a). Therefore, contrary to plaintiff’s 

assertions in its brief on appeal, where the statute of limitations had expired well before 

plaintiff’s decedent’s tragic death on December 27, 2012, MCL 600.58528 simply does not apply 

to allow plaintiff’s claims to proceed. Consequently, while the trial court employed different 

reasoning in reaching its conclusion, its ultimate determination that plaintiff’s cause of action 

was time-barred is nonetheless correct. See Messenger v Ingham Co Prosecutor, 232 Mich App 

633, 643; 591 NW2d 393 (1998) (recognizing that “[w]hen this Court concludes that a trial court 

has reached the correct result, this Court will affirm even if it does so under alternative 

reasoning.”) 

To the extent that plaintiff further asserts that the trial court erred in concluding that 

defendants were not grossly negligent, MCL 600.5839(1)(b), we again disagree. 

As plaintiff acknowledges in its brief on appeal, gross negligence is “conduct so reckless 

as to demonstrate a substantial lack of concern for whether an injury results.” MCL 

691.1407(8)(a); see also Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 411; 716 

NW2d 236 (2006). One can be said to be grossly negligent when an objective observer could 

conclude that “the actor simply did not care about the safety or welfare of those in his charge.” 

Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004) (footnote and citation omitted). 

We recognize that plaintiff presented the February 16, 2016 affidavit of their expert, A. 

James Partridge, who averred that defendants “failed to satisfy the standards of care applicable to 

 8 MCL 600.5852(1) provides, in pertinent part, as follows: 

(1) If a person dies before the period of limitations has run or within 30 days after 

the period of limitations has run, an action that survives by law may be 

commenced by the personal representative of the deceased person at any time 

within 2 years after letters of authority are issued although the period of 

limitations has run.
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to a licensed plumbing/mechanical contractor in their installation of the water heater.” Partridge 

further concluded that defendants failed to comply with applicable building codes and the water 

heater’s installation manual. Noting that defendants were grossly negligent in the installation of 

the water heating system, Partridge averred, in pertinent part, as follows:

I have concluded that Phelps Plumbing and Heating, Inc., and their 

employees failed to satisfy the codes and the water heater manufacturer[’]s 

instructions by (1) installing a water heater to perform the function of a boiler. . . .

(2) not connecting the 2 water heater flues to a gas vent or chimney, (3) not 

terminating the flue at least 2 feet above the highest point of any portion of the 

building within a horizontal distance of 10 feet, (4) not protecting the flue passing 

through the wood rim joist with a non-combustible material, (5) terminating the 

flues in the wind pressure drift area, (6) not designing and constructing a venting 

system to develop a positive flow adequate to remove flue gases to the outside, 

(7) not installing a low-water cut-off, (8) not installing temperature/pressure 

gauge, and (9) terminating flue gas within 3 feet of opening door [sic]. 

* * * 

Phelps Plumbing and Heating, Inc., and their employees installed a water 

heater not suited for the application and contrary to the codes and standards noted 

above, which resulted in the heat exchanger failure and carbon monoxide 

poisoning death of [plaintiff’s decedent]. 

In his January 28, 2016 affidavit, Phelps averred that plaintiff’s decedent “wanted to use 

her own supplies and equipment for the [heating] system” and that plaintiff’s decedent supplied 

“the hot water heaters, exhaust fan and piping and vents for the system.” Phelps further averred, 

in pertinent part, as follows:

That I was aware that [plaintiff’s decedent] was a dealer for Paloma 

products. I had known [plaintiff’s decedent] for a number of years. She had 

indicated that because she was a dealer for [Paloma’s] products, she wanted to use 

their products, with respect to the [heating] system in her home. [Plaintiff’s 

decedent] indicated that her company, which she and her brother owned, sold and 

serviced Paloma parts. She also gave me instructions on how the parts were to 

[be] install[ed] and indicated that she had conferred with a Paloma representative 

with respect to the installation of the parts and equipment she supplied from 

Paloma. 
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No-Che-Mo, Inc.9 then installed the two hot water heaters, exhaust fan, 

piping and vents and other HVAC parts and materials that were supplied by 

[plaintiff’s decedent]. 

* * * 

. . . [Plaintiff’s decedent] informed us that one of the Paloma boilers, that 

looked like a domestic hot water heater, wasn’t large enough and wasn’t doing the 

job. She then supplied a larger hot water heater, which I then installed on behalf 

of No-Che-Mo, [Inc.] per the specifications that [plaintiff’s decedent] had 

supplied. In addition, an extra pump was installed for the new hot water heater 

she supplied. [Footnote added.] 

According to Phelps, before the property underwent an inspection by an inspector for the 

County of Lake, plaintiff’s decedent informed him that a representative of Paloma had “done the 

initial start-up of the HVAC system and had made adjustments to the HVAC system to get it 

ready for an inspection by the County Inspector.” Phelps further averred that additional work 

was completed on January 18, 2006 at plaintiff’s decedent’s request where “[plaintiff’s 

decedent’s] Paloma representative wanted some piping for the boiler placed further apart.” After 

December 20, 2006, Phelps would occasionally cross paths with plaintiff’s decedent in the 

community, and “[plaintiff’s decedent] would inform [Phelps] how happy she was with her 

[heating] system, how well it was doing and how low her heating bills were. Also, [plaintiff’s 

decedent] was trying to get [Phelps] to promote the Paloma products that her company sold[ ] . . . 

.” Phelps noted in his affidavit that after plaintiff’s decedent’s death, when he visited her home, 

he noticed several items that “were missing and/or not present and/or different than when the

[heating] system was inspected by [Lake County].” Specifically, Phelps averred, in pertinent 

part, as follows:

The pump, check valve and relay (for turning the pump on and off) for the 

Paloma hot water heaters were gone.

The high limit controller was gone.

The draft hood unit was gone. 

The wiring for the controller, pump and check valve were missing. There 

were open boxes of wiring everywhere. 

The original piping and heater had been re-worked and a different heater 

was installed. The old heater was sitting on the floor. 

 9 According to the record, No-Che-Mo, Inc. was a predecessor entity for Phelps Plumbing and

Heating, Inc. 
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The home was sprayed with foam insulation, which was evidenced by 

foam on the piping we installed.

The front door to the home had been relocated between the time the first 

unit was installed and the second unit was installed. 

Phelps continued to aver that “all work I performed was done in accordance with HVAC code 

and/or the instructions I received from [plaintiff’s decedent]. . . . That I . . . installed the material 

and equipment received and supplied by [plaintiff’s decedent] in accordance with the instructions 

she gave me and that the HVAC system was inspected and passed the inspection by the [Lake] 

County Inspector, Peter Nammensma.”

Viewing the record evidence in its entirety, we are not persuaded that it supports a 

reasonable conclusion that defendants “did not care about the safety or welfare” of plaintiff’s 

decedent or others when undertaking the installation of plaintiff’s decedent’s heating system. 

Tarlea, 263 Mich App at 90. Moreover, the record evidence does not establish that defendants 

engaged in conduct “so reckless as to demonstrate a substantial lack of concern for whether an 

injury resulted to [plaintiff’s decedent or others].” Xu v Gay, 257 Mich App 263, 271; 668 

NW2d 166 (2003). Rather, the record evidence reflects that plaintiff’s decedent and defendants 

acted cooperatively in a manner to assemble her heating system, and we are not persuaded that 

defendants’ conduct rose to the level of gross negligence as a matter of law. See Jackson v Co of 

Saginaw, 458 Mich 141, 146; 580 NW2d 870 (1998) (recognizing that a court may determine 

issues of gross negligence where reasonable minds could not differ on the issue).

10 Accordingly, 

the trial court correctly determined that MCL 600.5839(1)(b) was not applicable under the 

circumstances of this case, and summary disposition was properly granted pursuant to MCR 

2.116(C)(7). 

Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219. 

/s/ Karen M. Fort Hood 

/s/ Mark J. Cavanagh 

 10 Plaintiff argues in its brief on appeal that the record establishes that Phelps Plumbing and 

Heating, Inc. “was not simply taking instruction and material from [plaintiff’s decedent], but that 

it was involved in the design and installation of the system itself.” We note that any factual 

disputes on this discrete issue are not dispositive in our ultimate conclusion that the record does 

not support a finding of gross negligence on the part of defendants.