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### STATE OF MICHIGAN

COURT OF APPEALS

JOHN DOE,

Plaintiff-Appellant, FOR PUBLICATION October 27, 2015
9:15 a.m.

v No. 322150 Ingham Circuit Court WENDALL A. RACETTE, LC No. 12-001289-NI

Defendant-Appellee.

Before: M. J. K ELLY , P.J., and M URRAY and S HAPIRO , JJ.

P ER C URIAM

.
Plaintiff appeals as of right t he trial court’s ruling grantin g defendant’s motion for summary disposition under MCR 2.116(C)(7) (claim barred by the statute of limitations) in this action involving various torts ste mming from alleged incidents of sexual abuse. We affirm.

In December of 2012, plaintiff filed a complaint against defen dant, claiming assault and battery, intentional infliction of emotional distress (IIED), a nd false imprisonment. He alleged that, starting in 1995 when he was just five years old, his par ents brought him to defendant’s dentistry practice for dental ser vices. He alleged that, durin g the next five years, defendant subjected him to various forms of sexual abuse, which he did no t disclose because defendant threatened to kill him and rape his sisters if his told anyone about the abuse. 1

In response, defendant filed a motion for summary disposition under MCR 2.116(C)(7), arguing that plaintiff’s claims were time-barred because plaint iff waited more than 12 years after the alleged abuse to file a lawsuit. Plaintiff conceded that t he applicable limitations periods had expired. See MCL 600.5805(2) (claims for false imprisonment an d assault and battery are governed by a two-year limitations period); MCL 600.5805(10) (c laims for IIED are governed by a three-year limitations per iod); and MCL 600.5851(1) (if a claim accrues when a plaintiff is a minor the limitations period is extended for one year after t he disability is removed). Nevertheless plaintiff argued th at defendant should be equitabl y estopped from ra ising the statute

1 Plaintiff disclosed the abuse to the police in December of 201 0. In 2012, defendant was
convicted of five counts of criminal sexual conduct in the firs t-degree, MCL 750.520b(1)(a), and
ten counts of criminal sexual c onduct in the second-degree, MCL 750.520c(1)(a). On appeal,
this Court reversed his convictions and remanded for a new tria l. People v Racette , unpublished opinion per curiam of the Court of Appeals, issued September 1, 2015 (Docket No. 314895).-2- of limitations as a defense because his threats to kill him and harm his sisters prevented him from bringing his claim within the limitations period. The trial co urt, however, found that the applicable limitations period had elapsed and that equitable es toppel did not apply. This appeal
follows.

A trial court’s ruling on a motion for summary disposition bro ught under MCR 2.116(C)(7) is reviewed de novo to determine if the moving part y is entitled to judgment as a
matter of law. Doe v Roman Catholic Archbish op of Archdiocese of Detroit , 264 Mich App 632, 638; 692 NW2d 398 (2004). “If a party supports a motion under MCR 2.116(C)(7) by submitting affidavits, depositions, admissions, or other docume ntary evidence, those materials
must be considered” unless their substance and content is inadm issible as evidence. Pusakulich v City of Ironwood , 247 Mich App 80, 82; 635 NW2d 323 (2001), citing MCR 2.116(G) (5). “[T]he contents of the complaint are accepted as true unless co ntradicted by documentation submitted by the movant.” Pusakulich , 247 Mich App at 82.

Equitable estoppel is a judicia lly created “exception to the g eneral rule which provides
that statutes of limitation run without interruption.” Lothian v City of Detroit , 414 Mich 160, 176; 324 NW2d 9 (1982). “It is essentially a doctrine of waive r that extends the applicable period for filing a lawsuit by p recluding the defendant from ra ising the statute of limitations as a
bar.” Cincinnati Ins Co v Citizens Ins Co , 454 Mich 263, 270; 562 NW2d 648 (1997). “[A]bsent intentional or negligent conduct designed to induce a pla intiff to refrain from bringin g a timely action,” Michigan courts have been “reluctant to recog nize an estoppel.” Id . (emphasis in original). Such equitable power “has traditionally been res erved for ‘unusual circumstances’ such as fraud or mutual mistake” because a “court’s equitable p ower is not an unrestricted
license for the cour t to engage in whol esale policymaking.” Devillers v Auto Club Ins Ass’n , 473 Mich 562, 590; 702 NW2d 539 (2005). In the past, we have typic ally applied equitable estoppel in cases where the defendant induced the plaintiff to believe t he limitations period would not be
enforced. See McDonald v Farm Bureau Ins Co , 480 Mich 191, 204-205; 747 NW2d 811 (2008) (holding that in order to invoke the equitable estoppel doctrine, the plaintiff must generally establish that “(1) def endant’s acts or representatio ns induced plaintiff to believe that the limitations period clause would not be enforced, (2) plaint iff justifiably relied on this belief, and (3) she was prejudiced as a result of her reliance on her b elief that the clause would not be enforced.”). In this case, defe ndant correctly points out that there is nothing on the record indicating that his alleged threat to kill plaintiff and harm h is sisters induced plaintiff to believe the limitations period would not be enforced. However, there a re no Michigan cases addressing whether a threat of murder can be grounds for invoking the equi table estoppel doctrine. Thus, it is an issue of first impression whether a defendant can be equi tably estopped from raising the statute of limitations as a bar in cases where the plaintiff fa iled to file suit within the limitations period because of the defendant’s threats to kill the plaintiff and harm his family if he disclosed
instances of sexual abuse.

In this case, the trial court h eld that equitable estoppel cou ld not be extended to this situation because the purpose of defendant’s alleged threats we re not clearly designed to induce plaintiff from bringing his claim within the limitations period . We disagree. If a defendant
threatens to murder a victim shoul d he or she disclose instance s of sexual abuse, the threat necessarily encompasses all forms of disclosure, including disc losure in the form of a timely filed lawsuit. In such circumstances, the defendant’s conduct is clearly intentionally designed to-3- induce the plaintiff to refrain from taking any action in opposition of the defendant, including “bringing action within the p eriod fixed by statute.” Lothian , 414 Mich at 177 (quotation omitted); see also Cincinnati Ins Co , 454 Mich at 270. Accordingly, a threat to murder a plaintiff and harm his family s hould he or she di sclose instanc es of sexual abuse can establish the first element of equitable estoppel.

However, in addition to showing the existence of a threat, pla intiff must show that he or she acted within a reasonable time to bring suit after the coer cive effect of the threat had ended.
See McDonald , 480 Mich at 205 (holding that equitable estoppel did not appl y when there was “no evidence that plaintiff re lied on anything defendant did or said” when she delayed bringing suit within the limitations period); see also Lothian , 414 Mich at 177 (holding that equitable estoppel did not apply where the plaintiff’s failure to bring s uit within the limitations period was not because of the defendant’s actions). In this case, it is u ndisputed that plaintiff disclosed the abuse to the police in December of 2010, when he was almost 21 years old. In February of 2011, he testified at the preliminary e xamination in defendant’s crim inal case. In November of 2011,
he testified at defendant’s fir st trial, which ended in a hung jury. In August of 2012, he testified at defendant’s second trial, which ended with his conviction on multiple counts of criminal sexual conduct in the first- and second-degree. However, it wa s not until December of 2012— about two years after he first d isclosed the abuse to the polic e—that defendant opted to file the present suit.

While plaintiff’s failure to bri ng suit during the pre-disclos ure period may have been the result of the fear engendered by defendant’s threats, the undis puted evidence shows that plaintiff continued to delay filing suit we ll after the grounds for such fear had ended with the disclosure to the police. Alternatively put, plaintiff’s disclosure to the p olice in December 2010 demonstrates that his fears no longer constrained him to remain silent and s o estoppel based upon that fear cannot have remained effective until December 2012. Following his public disclosure, plaintiff “had a primary obligation to secure prompt resolution of his cl aim in the courts.” Lothian , 414
Mich at 179. His failure to do s o precludes application of the doctrine of equitable estoppel.

Affirmed.

/s/ Michael J. Kelly /s/ Douglas B. Shapiro