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Smith v. Randolph3/24/2005
UNPUBLISHED
Defendant appeals as of right an order denying his motion for summary disposition pursuant to MCR 2.116(C)(7)(claim barred by the statute of limitations), granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10), and entering judgment in favor of plaintiff for $750,000. We affirm in part and reverse and remand in part.
Plaintiff commenced this wrongful-death action on October 4, 2002, alleging that defendant was liable for the January 8, 1982, shooting death of plaintiff's decedent, who was defendant's wife. Defendant first argues that the trial court erred in determining that plaintiff's action was not barred by the statute of limitations. We disagree, but for reasons other than those stated by the trial court and argued by plaintiff.
The limitations period for a wrongful-death action is three years. MCL 600.5805(10). Because plaintiff's decedent was fatally shot on January 8, 1982, and plaintiff did not file this action until October 4, 2002, the cause of action was prima facie barred. Therefore, plaintiff had the burden of showing the facts necessary to avoid the operation of the statute of limitations. Warren Consolidated Schools v W R Grace & Co, 205 Mich App 580, 583; 518 NW2d 508 (1994). In response to defendant's motion for summary disposition, plaintiff relied in part on the fraudulent concealment statute, MCL 600.5855, which provides:
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.
Plaintiff argued, and the trial court agreed, that this statute was applicable and that the two-year limitations period did not begin to run until November 19, 2001, which was the date that defendant was convicted of decedent's murder.
To seek recourse under the fraudulent concealment statute, plaintiff was required to plead in his complaint the acts or misrepresentations that comprised the fraudulent concealment, and he had to prove that defendant "committed affirmative acts of misrepresentations that were designed to prevent subsequent discovery." Phinney v Perlmutter, 222 Mich App 513, 562-563; 564 NW2d 532 (1997). We find that plaintiff's complaint sufficiently referenced acts and misrepresentations giving rise to fraudulent concealment. The complaint alleged that defendant gave police an account of the crime that was illogical and which contained inconsistencies. Plaintiff further alleged that defendant had his wife's remains cremated over the objection of family members. Additionally, it was alleged that defendant sued the shopping mall where the murder was committed and that he settled the suit in 1983 for more than $70,000. Finally, plaintiff alleged that in December 1999, a person, not defendant, came forward with information implicating defendant in the crime. In sum, these allegations suggest that defendant lied to the police about the murder, that defendant hoped to hamper further investigation by having the body cremated, that defendant successfully sought to hold others civilly liable for the homicide while hiding his own duplicitous involvement, that defendant did not reveal his involvement in the murder, and that it took police contact by another person to initiate the prosecution. Therefore, plaintiff pled acts and misrepres
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