Ostroth v. Warren Regency, GP, LLC

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED FEBRUARY 1, 2006

ELLEN M. OSTROTH and THANE OSTROTH,
Plaintiffs,

and

JENNIFER L. HUDOCK and BRIAN D.
HUDOCK,
Plaintiffs-Appellees,

v No. 126859

WARREN REGENCY, G.P., L.L.C., AND
WARREN REGENCY LIMITED PARTNERSHIP,
Defendants,

and

EDWARD SCHULAK, HOBBS & BLACK, INC.,
Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

WEAVER, J.

This architectural malpractice case poses the issue

whether MCL 600.5839 is only a statute of repose, in which

case MCL 600.5805(6) or (10) supplies a shorter limitations

period, or is itself both a statute of repose and a statute

of limitations. The Court of Appeals concluded that § 5839
is both a statute of repose and a statute of limitations

and thus the plaintiff’s cause of action is not time-

barred.1 We agree and accordingly affirm that decision and

remand the matter to the circuit court.

FACTS

In April 1998, defendant Edward Schulak, Hobbs &

Black, Inc., architects and consultants, was the architect

in a renovation project, designing renovations for office

spaces at 12222 East Thirteen Mile Road in Warren,

Michigan. Plaintiff Jennifer L. Hudock worked in the

offices from April 24, 1998, through August 24, 1998.

Plaintiff alleges that during that time she was exposed to

environmental hazards such as fungus, mold, bacteria,

formaldehyde, and carbon dioxide as a result of the

renovations to the building’s heating, cooling,

ventilation, and plumbing systems. She claims that she

sustained personal injuries as a result of environmental

hazards arising from the renovation of her workplace.2

1
263 Mich App 1; 687 NW2d 309 (2004).
2
Plaintiff’s husband’s claim is derivative. The other
plaintiffs in this case, Ellen M. and Thane Ostroth, and
two other defendants, Warren Regency, G.P., L.L.C.; and
Warren Regency Limited Partnership, are not parties to this
appeal.

Plaintiff initiated this action for damages on May 10,

2000. In her first amended complaint filed November 14,

2000, plaintiff alleged that defendant-architect

negligently exposed plaintiff to a hazardous environment

that caused injury and increased the risk of injury in the

future. Defendant first moved for summary disposition,

challenging the merits of plaintiff’s claim. The circuit

court then allowed defendant to amend its affirmative

defenses to include the claim that plaintiff’s suit was

time-barred by the two-year limitations period of MCL

600.5805(6).

The circuit court granted defendant’s motion for

summary disposition, holding that the two-year limitations

period for malpractice claims of MCL 600.5805(6) applied.

However, the Court of Appeals affirmed in part, reversed in

part, and remanded the matter to the circuit court, holding

that the six-year limitations period of MCL 600.5839(1)

applies to plaintiff’s action for damages.

We granted defendant’s application for leave to appeal

and directed that the parties include among the issues to

be briefed

(1) whether MCL 600.5839(1) precludes application
of the statutes of limitations prescribed by MCL
600.5805 and, if not, (2) which statute of
limitations, MCL 600.5805(6) or MCL 600.5805(10),
is applicable to the claim asserted against

defendant Edward Schulak, Hobbs & Black, Inc., in
this case.[3]

STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on

a motion for summary disposition. Spiek v Dep't of

Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

This case involves a question of statutory interpretation,

which this Court also reviews de novo. Oade v Jackson

Nat'l Life Ins Co, 465 Mich 244, 250-251; 632 NW2d 126

(2001).

ANALYSIS

A person cannot commence an action for damages for

injuries to a person or property unless the complaint is

filed within the periods prescribed by MCL 600.5805.

Gladych v New Family Homes, Inc, 468 Mich 594, 598; 664

NW2d 705 (2003). MCL 600.5805(1) provides:

A person shall not bring or maintain an
action to recover damages for injuries to persons
or property unless, after the claim first accrued
to the plaintiff or to someone through whom the
plaintiff claims, the action is commenced within
the periods of time prescribed by this section.

The several subsections of MCL 600.5805 define periods of

limitations for various types of actions to recover damages

for injuries to persons or property.

3
472 Mich 898 (2005).

Relevant to this case, MCL 600.5805(6) provides for a

two-year period of limitations for actions charging

malpractice, MCL 600.5805(10) provides a three-year period

of limitations for general negligence actions, and MCL

600.5805(14) addresses the period of limitations for an

action for damages involving a state-licensed architect and

an improvement to real property.4 The parties dispute the

effect and proper interpretation of MCL 600.5805(14) and

MCL 600.5839(1).

When interpreting statutes, “we presume that the

Legislature intended the meaning clearly expressed . . . .”

DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d

300 (2000). Judicial construction is not required or

permitted if the text of the statute is unambiguous. Id.

MCL 600.5805(14) was added to MCL 600.5805 in 1988.5

Subsection 5805(14) provides:

The period of limitations for an action
against a state licensed architect, professional
engineer, land surveyor, or contractor based on
an improvement to real property shall be as
provided in section 5839.

4
MCL 600.5805 has been amended several times: the
current subsection 6 was formerly subsection 4; the
current subsection 10 was formerly subsection 8; and,
the current subsection 14 was formerly subsection 10.
5
1988 PA 115.

MCL 600.5839(1) in turn specifies a six-year period of

limitations that begins to run “after the time of occupancy

of the completed improvement, use, or acceptance of the

improvement . . . .”

MCL 600.5839(1) was enacted twenty years before MCL

600.5805(14).6 MCL 600.5839(1) currently provides in full:

No person may maintain any action to recover
damages for any injury to property, real or
personal, or for bodily injury or wrongful death,
arising out of the defective and unsafe condition
of an improvement to real property, nor any
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,
more than 6 years after the time of occupancy of
the completed improvement, use, or acceptance of
the improvement, or 1 year after the defect is
discovered or should have been discovered,
provided that 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.
However, no such action shall be maintained more
than 10 years after the time of occupancy of the
completed improvement, use, or acceptance of the
improvement.

6
1967 PA 203. As originally enacted, MCL 600.5839(1)
did not provide a one-year discovery provision or the final
ten-year period for gross negligence claims. These
provisions were added by 1985 PA 188 at the same time the
statute was expressly expanded to include contractors.

Defendant contends that the six-year period of MCL

600.5839(1) is a statute of repose that operates in

addition to the shorter periods of limitations in MCL

600.5805(6) and (10).7 In other words, defendant claims

that when an action arises within the six-year period

specified by MCL 600.5839(1), the periods of limitations in

MCL 600.5805 still apply. The Court of Appeals disagreed,

however, holding that MCL 600.5839(1) is both a statute of

limitations and a statute of repose so that an action for

damages involving architects can be filed at any time

within six years of the occupancy of the completed

improvement.

This Court first addressed MCL 600.5839(1) in O’Brien

v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980). In

O’Brien, this Court upheld the constitutionality of MCL

600.5839(1) and described the statute’s operation as

follows:

[T]he instant statute is both one of
limitation and one of repose. For actions which
accrue within six years from occupancy, use, or

7
“‘A statute of repose limits the liability of a party
by setting a fixed time after . . . which the party will
not be held liable for . . . injury or damage . . . .
Unlike a statute of limitations, a statute of repose may
bar a claim before an injury or damage occurs.’”
Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511,
513 n 3; 573 NW2d 611 (1998)(citation omitted).

acceptance of the completed improvement, the
statute prescribes the time within which such
actions may be brought and thus acts as a statute
of limitations. When more than six years from
such time have elapsed before an injury is
sustained, the statute prevents a cause of action
from ever accruing.[8]

Regarding the purpose of the statute, O’Brien stated: “The

Legislature chose to limit the liability of architects and

engineers in order to relieve them of the potential burden

of defending claims brought long after completion of the

improvement . . . .”9

Despite O’Brien’s statement10 that MCL 600.5839(1)

“acts as a statute of limitations” for claims arising

within “six years from occupancy, use, or acceptance of the

completed improvement,” defendant argues that the six-year

period provided by MCL 600.5839(1) is merely a statute of

repose that does not inhibit the application of the two-

year period of limitations for malpractice claims or the

three-year period of limitations for negligence actions of

MCL 600.5805 (6) and (10).

For this argument, defendant relies on Witherspoon v

Guilford, 203 Mich App 240; 511 NW2d 720 (1994).

8
O’Brien, supra at 15.

9
Id. at 14.

10
Id. at 15.

Witherspoon addressed whether the six-year period under MCL

600.5839(1) precludes the application of the three-year

period of limitations of the current MCL 600.5805(10)

“where the cause of action arises within six years after

the use or acceptance of the improvement.”11 Witherspoon

concluded that subsection 14 was added to MCL 600.5805

merely to “underscore [the Legislature’s] intent to grant §

5839 primacy over other arguably applicable periods of

limitation, running from the time of discovery, whose

effect would defeat the repose aspect of § 5839.”12

Witherspoon further concluded that to apply MCL 600.5839(1)

exclusively of the shorter periods of limitations in MCL

600.5805 would render portions of MCL 600.5805 nugatory.

Although Witherspoon13 correctly recognized that the

current MCL 600.5805(14) and MCL 600.5839 “set forth an

emphatic legislative intent to protect architects,

engineers, and contractors from stale claims,” we find no

evidence that through the enactment of MCL 600.5805(14) the

Legislature intended MCL 600.5839(1) to merely serve as a

statute of repose. Regarding which period of limitations

11
Witherspoon, supra at 246.
12
Id.
13
Id. at 247.

applies to renovations to real property and the liability

of a state-licensed architect who furnished the design for

the renovations, there is no ambiguity in the language of

either MCL 600.5805(14) or MCL 600.5839(1).14 MCL

600.5805(14) unambiguously provides that “[t]he period of

limitations for an action against a state licensed

architect . . . shall be as provided in section 5839.”

Because defendant is a state-licensed architect that

furnished the design for the improvements to the real

property that allegedly caused plaintiff’s injury, under

MCL 600.5839(1) the period within which plaintiff can

“maintain any action to recover damages for . . . bodily

injury” is six years “after the time of occupancy of the

completed improvement, use, or acceptance of the

improvement . . . .”

14
Cf. Michigan Millers Mut Ins Co v West Detroit Bldg
Co, Inc, 196 Mich App 367; 494 NW2d 1 (1992), concluding
that the effect of MCL 600.5805(14) on MCL 600.5839(1) was
ambiguous on a different question than that presented by
this appeal. Michigan Millers concluded that MCL
600.5805(14) was ambiguous regarding whether the
Legislature intended that the six-year period of MCL
600.5839(1) be applied to all actions based on improvements
to real property, both third-party actions and actions for
professional malpractice. The panel examined the
legislative history and held that the Legislature intended
that MCL 600.5839(1) did apply to both types of claims.

Moreover, it does not render any portion of MCL

600.5805 nugatory to hold that MCL 600.5839(1) is, as it

plainly appears on its face, both a statute of repose and a

statute of limitations. The periods of limitations of MCL

600.5805 for malpractice and general negligence actions

remain applicable to any claim that does not involve “a

state licensed architect, professional engineer, land

surveyor, or contractor” and that is not “based on an

improvement to real property . . . .” MCL 600.5805(14).

Finally, our interpretation is not in conflict with

the policies underlying MCL 600.5839(1) that this Court

identified in O’Brien, supra at 16:

By enacting a statute which grants
architects and engineers complete repose after
six years rather than abrogating the described
causes of action in toto, the Legislature struck
what it perceived to be a balance between
eliminating altogether the tort liability of
these professions and placing no restriction
other than general statutes of limitations upon
the ability of injured plaintiffs to bring tort
actions against architects and engineers. The
Legislature could reasonably have concluded that
allowing suits against architects and engineers
to be maintained within six years from the time
of occupancy, use, or acceptance of an
improvement would allow sufficient time for most
meritorious claims to accrue and would permit
suit against those guilty of the most serious
lapses in their professional endeavors.

As stated in O’Brien, “[t]he power of the Legislature to

determine the conditions under which a right may accrue and

the period within which a right may be asserted is

undoubted.” Id. at 14.

CONCLUSION

We hold that MCL 600.5805(14) unambiguously directs

that the period of limitations for actions against

architects is provided by MCL 600.5839(1). Moreover, the

six-year period of MCL 600.5839(1) operates as both a

statute of limitations and a statute of repose. Therefore,

plaintiff’s action for damages, brought well within this

time period, is not time-barred. The Court of Appeals

decision is affirmed and this case is remanded to the

circuit court for further proceedings. To the extent that

the Court of Appeals decision in Witherspoon, supra, is

inconsistent with this opinion, it is overruled.15

Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

15
We note that Witherspoon appears to have been the
“first out” under MCR 7.215(J)(1) on the precise question
of statutory interpretation presented in this case.
However, our decision to overrule Witherspoon to the extent
that it is inconsistent with our decision resolves any
conflict on the question.

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

SUPREME COURT

ELLEN M. OSTROTH and THANE OSTROTH,

Plaintiffs,

and

JENNIFER L. HUDOCK and
BRIAN D. HUDOCK,

Plaintiffs-Appellees,

v No. 126859

WARREN REGENCY, G.P., L.L.C., and
WARREN REGENCY LIMITED PARTNERSHIP,

Defendants,

and

EDWARD SCHULAK, HOBBS & BLACK, INC.,

Defendant-Appellant.
_______________________________

KELLY, J. (concurring).

I concur with the majority in this case that the

applicable limitations period is six years as stated in MCL

600.5839(1). I write separately to explain the difference

between my decision in this case and my concurrence in

Stanislawski v Calculus Constr Co, Inc, unpublished opinion

per curiam of the Court of Appeals, issued April 7, 1994

(Docket No. 145467).
When I penned my concurrence in Stanislawski I was

bound by Witherspoon v Guilford, 203 Mich App 240; 511 NW2d

720 (1994). See MCR 7.215(J)(1). Now that I am in the

position to overturn Witherspoon and see the wisdom of

doing so, I join in the decision reached by the Court in

this case.

Marilyn Kelly