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Tebo v. Desai12/15/2000
UNPUBLISHED
Plaintiffs appeal as of right from the trial court's order granting, on reconsideration, defendants' motion for summary disposition under MCR 2.116(C)(7). The trial court held that plaintiffs' wrongful death action based on their mother's murder was barred by the period of limitations. We affirm.
The decedent was murdered in November 1983. Plaintiffs alleged that Desai, who was the decedent's business partner, solicited Adams to commit the murder in order to obtain the decedent's share of the business and the proceeds from the decedent's life insurance policies that named Desai as the beneficiary. In 1995, defendants Desai and Adams eventually were charged with the decedent's murder. Although the trial court initially dismissed the criminal charges against Desai and Adams, this Court reversed the trial court and remanded the case for further proceedings. People v Adams, 232 Mich App 128; 591 NW2d 44 (1998).
Plaintiffs brought the instant action in 1995, well after the expiration of the three-year wrongful death period of limitations. MCL 600.5805(8); MSA 27A.5805(8). Plaintiffs maintained that the period of limitations was tolled, however, because defendants fraudulently concealed their involvement in the decedent's murder. MCL 600.5855; MSA 27A.5855. The trial court initially denied defendants' motion for summary disposition, instead allowing plaintiffs to amend their complaint to specifically plead defendants' acts of fraudulent concealment. On reconsideration, the trial court granted defendants' motion for summary disposition, holding that plaintiffs failed to specifically plead any affirmative acts of fraudulent concealment and that plaintiffs had knowledge of defendants' identity and potential liability within the period of limitations, rendering ยง 5855's tolling provision inapplicable.
We review for an abuse of discretion the trial court's decision on a motion for reconsideration. In re Beglinger Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997). Whether a claim is barred by the statute of limitations, however, is a question of law that we review de novo. Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999).
Section 5855 allows the relevant limitations period to be tolled in cases of fraudulent concealment. It provides as follows:
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
This tolling provision "is designed to prevent actions which hinder a plaintiff from discovering the existence of a claim." Stroud v Ward, 169 Mich App 1, 7-8; 425 NW2d 490 (1988).
To invoke the tolling provision, "there must be concealment by the defendant of the existence of a claim or the identity of a potential defendant." McCluskey v Womack, 188 Mich App 465, 472; 470 NW2d 443 (1991). The fraudulent concealment "must be manifested by an affirmative act or misrepresentation." Witherspoon v Guilford, 203 Mich App 240, 248; 511 NW2d 720 (1994). A defendant's mere silence is not enough to establish fraudulent concealment. Dowse v Gaynor, 155 Mich 38, 43; 118 NW 615 (1908); Sills v Oakland General Hospital, 220 Mich App 303, 310; 559 NW2d 348 (1996). "Fraudulent concealment means employment of artifice, planned t
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