-1-

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

ROSE SFRAGA and LORENZO SFRAGA,

Plaintiffs,

UNPUBLISHED

December 18, 2018

v No. 340241

Macomb Circuit Court

SANCTUARY AT FRASER VILLA, also known 

as TRINITY CONTINUING CARE SERVICES,

LC No. 2015-004082-NO

Defendant/Third-Party PlaintiffCross-Plaintiff-Appellant,

and

MATTHEW SEENA, TUPPER DOOR & 

HARDWARE, INC., CENTURY INTERIORS, 

INC., B & B CERAMIC TILE & MARBLE, and 

THE MONAHAN CO.,

Defendants, 

and

EDMUND LONDON & ASSOCIATES, INC.,

Third-Party Defendant,

and

MONAHAN DEVELOPMENT CORP.,

Cross-Defendant-Appellee.

Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.

PER CURIAM.

Cross-plaintiff-appellant, Trinity Continuing Care Services, appeals by right the trial 

court’s order granting summary disposition under MCR 2.116(C)(7) in favor of cross-defendant-
-2-

appellee, Monahan Development Corp. The trial court held that Trinity’s cross-claim, which

seeks indemnification for damages arising from plaintiffs’ action for injuries allegedly sustained 

at Trinity’s facility, Sanctuary at Fraser Villa, was barred by the six-year limitations period set 

forth in MCL 600.5839(1)(a). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Trinity and Monahan entered into a construction contract in 2008. Monahan was to 

construct an expansion to the Sanctuary at Fraser Villa. The expansion project included work on 

doorway thresholds. The contract contained an indemnification clause in which Monahan agreed 

to indemnify Trinity for any claims arising out of Monahan’s construction work.

On November 16, 2015, plaintiff Rose Sfraga filed an action against Trinity, alleging that 

she sustained injuries while in rehabilitation at Sanctuary at Fraser Villa when her wheelchair 

struck a doorway threshold, causing her to fall out of the wheelchair. Sfraga later added 

Monahan as a defendant, alleging that Monahan, in its construction of the expansion to 

Sanctuary at Fraser Villa, disregarded “safety guidelines and procedures in place within the 

industry standard . . . which resulted in the improper placement and installation of a marble 

threshold at the doorway of the bathroom.”

Trinity filed a cross-claim against Monahan on December 19, 2016, seeking 

indemnification according to the construction contract’s indemnification clause. Monahan filed 

a motion for summary disposition, arguing that the claim was barred under the six-year 

limitations period set forth in MCL 600.5839. Monahan maintained that the six-year period

began to run at “the time of occupancy of the completed improvement, use or acceptance of the 

improvement,” MCL 600.5839(1)(a), which, it argued, occurred on November 2, 2009, when 

Trinity and the architect on the construction project signed off on the “punch list” and did not list 

any deficiencies. Alternatively, Monahan argued that, at the latest, the claim accrued on July 13, 

2010, when the city of Fraser issued a certificate of occupancy for the improved premises. 

Trinity, on the other hand, argued that MCL 600.5839 was inapplicable and that the general sixyear limitations period for contract actions, MCL 600.5807(9),1 applied instead. The trial court 

agreed with Monahan and granted summary disposition in its favor, holding that Trinity’s action 

was time-barred under MCL 600.5839.

 1 At the time of the trial court proceedings, this provision was contained in MCL 600.5807(8). 

MCL 600.5807 was amended, effective May 7, 2018, by 2018 PA 15, and former subsection (8) 

was renumbered as subsection (9); however, the provision as amended is substantially similar to 

the pre-amended version.
-3-

II. ANALYSIS

A. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s decision on a motion for summary 

disposition, as well as questions of statutory interpretation . . . .” Dextrom v Wexford Co, 287 

Mich App 406, 416; 789 NW2d 211 (2010).

In reviewing a motion under MCR 2.116(C)(7), this Court accepts as true the 

plaintiff’s well-pleaded allegations, construing them in the plaintiff’s favor. We 

must consider affidavits, pleadings, depositions, admissions, and documentary 

evidence filed or submitted by the parties when determining whether a genuine 

issue of material fact exists. [Hanley v Mazda Motor Corp, 239 Mich App 596, 

600; 609 NW2d 203 (2000) (internal citation omitted).]

B. DISCUSSION

The trial court held that, under McGee v City of Warren, 490 Mich 1000; 807 NW2d 315

(2012), MCL 600.5839 applied to Trinity’s action because it sought indemnity for damages 

arising from a tortious injury. Trinity argues that the applicable statute of limitations is MCL 

600.5807(9), and that our Supreme Court’s decisions in Miller-Davis Co v Ahrens Constr, Inc, 

489 Mich 355; 802 NW2d 33 (2011) (Miller-Davis I), and Miller-Davis Co v Ahrens Constr, Inc, 

495 Mich 161; 848 NW2d 95 (2014) (Miller-Davis II), compel a ruling in its favor.

MCL 600.5839 states, in pertinent part:

(1) 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:

(a) Six years after the time of occupancy of the completed improvement, 

use, or acceptance of the improvement. [MCL 600.5839(1)(a).]

“MCL 600.5839 is both a statute of repose and a statute of limitations.” Miller-Davis I, 489 

Mich at 358 n 2.

MCL 600.5807 states, in pertinent part:

(1) A person may not bring or maintain an action to recover damages or 

money due for breach of contract or to enforce the specific performance of a 

contract unless, after the claim first accrued to the person or to someone through 
-4-

whom the person claims, the person commences the action within the applicable 

period prescribed by this section.

* * *

(9) The period of limitations is 6 years for an action to recover damages or 

money due for breach of contract that is not described in subsections (2) to (8). 

[MCL 600.5807(1) and (9).]

Our Supreme Court interpreted these provisions in two decisions rendered in the same 

case. In Miller-Davis I, our Supreme Court held that MCL 600.5839 did not apply to breach-ofcontract actions; rather, MCL 600.5807 applied. Id. at 358. It further held that MCL 600.5839 

applied, instead, to actions in tort. Id. at 370. The Court concluded that MCL 600.5839 “does 

not apply to a claim against an engineer or contractor for a defect in an improvement when the 

nature and origin of the claim is the breach of a contract.” Id.

As Trinity correctly argues, Miller-Davis I held that MCL 600.5839 applied to tort 

actions while MCL 600.5807 applied to breach-of-contract claims. However, Trinity incorrectly 

seeks to apply this holding to this indemnification action. The Miller-Davis I Court concluded

that “the language of the provision strongly supports the conclusion that MCL 600.5839 does not 

apply to a breach of contract claim for a defect in a building improvement” and “does not apply 

to a claim against an engineer or contractor for a defect in an improvement when the nature and 

origin of the claim is the breach of a contract.” Id. at 370 (emphasis added). Miller-Davis I 

holds, therefore, that MCL 600.5839 does not apply when a claim’s origin is a breach of 

contract, e.g., defective construction. For such claims, MCL 600.5807 applies.

Moreover, when examining the facts of Miller-Davis I, it is clear that its holding is 

inapplicable to Trinity’s claim. In Miller-Davis I, the plaintiff and the defendant had contracted 

for the defendant to install a roof over a natatorium. Id. at 358. After installation, the natatorium 

experienced severe condensation and the defendant’s efforts to correct the problem were 

unsuccessful. Id. at 359. The plaintiff subsequently completed its own corrective work on the 

roof. Id. The plaintiff then sued the defendant for both breach of contract and indemnification, 

seeking damages for the costs incurred for correcting the roof. Id. The plaintiff’s “complaint did 

not allege that defendant’s work created a defective and unsafe condition, that defendant caused 

the [defect], or that plaintiff’s damages arose from a defective and unsafe condition.” Id. There 

were no third parties that had been injured from the defective roof that had sued the plaintiff, and 

the plaintiff was not seeking indemnification for such lawsuits.

This is factually distinguishable from the present case. The present case involved an 

allegedly defective condition, i.e., the threshold in the bathroom doorway constructed by 

Monahan that led to Sfraga’s injuries. Sfraga sued Trinity in tort for her injuries, and Trinity 

subsequently sought indemnification from Monahan. Miller-Davis I involved a “pure” 

contractual indemnification action that arose solely from a breach of contract, whereas the 

present case involves a contractual indemnification action that arose out of Sfraga’s tort action 

against Trinity.
-5-

Furthermore, Miller-Davis II is simply inapposite. Miller-Davis II addressed when the 

plaintiff’s claim accrued under MCL 600.5807. It did not address the proper application of 

MCL 600.5807 or MCL 600.5839. See Miller-Davis II, 495 Mich at 172, 180-182. That issue 

had already been decided in Miller-Davis I. See Miller-Davis I, 489 Mich at 358.

In contrast, our Supreme Court’s decision in McGee, 490 Mich 1000,2 is directly on point 

and supports the trial court’s decision. In McGee, the Court reversed this Court’s decision and 

remanded so that this Court could apply MCL 600.5807 to various breach-of-contract claims. 

McGee, 490 Mich at 1000. However, the Court stated that MCL 600.5807 was to be applied 

only “insofar as [the breach-of-contract claims] do not seek indemnity for damages sustained as a 

result of tortious injury[.]” Id. Moreover, the Court clarified that “MCL 600.5839(1) bars any 

action against a contractor seeking indemnity for damages resulting from bodily injury arising 

out of a defective and unsafe condition of an improvement to real property.” Id.

This language plainly states that MCL 600.5807 applies to a breach-of-contract claim 

unless that claim seeks indemnity for damages sustained as a result of a tort injury arising out of 

a defective and unsafe improvement to real property. In that scenario, MCL 600.5839 applies. 

Such is the case here. Trinity sought indemnity from Monahan for damages resulting from 

Sfraga’s injury, which allegedly arose from a defective and unsafe improvement to real property. 

Trinity’s action did not arise solely out of a breach of contract, as in Miller-Davis I; rather, it 

arose out of an alleged tortious injury. Therefore, the trial court properly determined that MCL 

600.5839 applied to Trinity’s indemnity action against Monahan.

MCL 600.5839(1)(a) provides that an action that falls under its purview must be 

commenced within “[s]ix years after the time of occupancy of the completed improvement, use, 

or acceptance of the improvement.” There is no dispute that the latest possible “time of 

occupancy” is July 13, 2010, the date on which the city of Fraser issued a certificate of 

occupancy following the improvements to the property. Trinity brought its action against 

Monahan on December 19, 2016, which was approximately five months too late.

Affirmed. Monahan is entitled to costs as the prevailing party. See MCR 7.219(A).

/s/ Mark J. Cavanagh

/s/ Deborah A. Servitto

/s/ Thomas C. Cameron

 2 “An order of [the Michigan Supreme] Court is binding precedent if it constitutes a final 

disposition of an application and contains a concise statement of the applicable facts and reasons 

for the decision.” DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369; 817 NW2d 504 

(2012). McGee meets these criteria. See People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 

(1993).