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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T E O F M I C H I G A N C O U R T O F A P P E A L S JUDY SANDERSON, ALBERT MORRIS, ANTONYAL LOUIS, and MADELINE BROWNE, UNPUBLISHED August 23, 2018 Plaintiffs-Appellants, v No Court of Claims UNEMPLOYMENT INSURANCE AGENCY, LC No MM Defendant-Appellee. Before: SHAPIRO, P.J., and M. J. KELLY and O BRIEN, JJ. PER CURIAM. Plaintiffs appeal as of right the order of the Court of Claims granting summary disposition to defendant pursuant to MCR 2.116(C)(7) based on plaintiffs failure to comply with the requirements of MCL We affirm. Each of the plaintiffs collected unemployment benefits, were found to have improperly collected those benefits, and were required by defendant to pay restitution. Plaintiffs filed a complaint in the Court of Claims on April 12, 2016, alleging that defendant violated plaintiffs due process rights by intercepting tax refunds, garnishing wages and forcing repayments from claimants after the applicable statute of limitations [had] expired. Plaintiffs sought an order declaring that defendant s practices violated plaintiffs rights; an order awarding plaintiffs economic damages; and an order permanently enjoining defendant from continuing to improperly intercept tax refunds, garnish wages, and collect the unemployment debts. Defendant moved for summary disposition under MCR 2.116(C)(4), (7), and (8). Relevant to this appeal, under MCR 2.116(C)(7), defendant argued that it was entitled to governmental immunity because plaintiffs failed to comply with the notice requirements in MCL The Court of Claims agreed and granted defendant s motion based on plaintiffs failure to comply with MCL (3). The court reasoned that the crux of plaintiffs claims concerned the seizure of plaintiffs property and, therefore, plaintiffs claims qualified as claims for property damage subject to the six-month notice requirement in MCL (3). The -1-

2 court then reviewed the dates of plaintiffs allegations and determined that none of plaintiffs claims accrued within six months of the filing of the complaint. 1 The court denied as futile plaintiffs request to amend their complaint. On appeal, plaintiffs first argue that [t]he Court of Claims erred when it dismissed Plaintiffs declaratory and injunctive relief claims based upon statutes of limitations. However, the Court of Claims dismissed plaintiffs claims based on failure to comply with the notice requirements in MCL , and it appears that plaintiffs conflate the notice requirements in MCL with a statute of limitations. Although these requirements are often treated the same, they are nonetheless two distinct concepts. A statute of limitations is a law that bars parties from bringing a claim after a certain amount of time has passed. Black s Law Dictionary (10th ed). A notice of intent exists to apprise the defendant of the claims that the plaintiff plans to bring before a complaint is filed. Potter v McLeary, 484 Mich 397, 464; 774 NW2d 1 (2009) (MARKMAN, J., concurring in part and dissenting in part). Therefore, plaintiffs have not presented any error for us to review. 2 Plaintiffs next argue that their claims are not subject to a six-month notice requirement under MCL (3) because they did not suffer property damage. We disagree. This Court reviews de novo a trial court s decision on a motion for summary disposition. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). A defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff s claims are barred because of governmental immunity. Pew v Mich State Univ, 307 Mich App 328, , 859 NW2d 246 (2014). This Court reviews de novo whether governmental immunity applies in a particular case, Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012), and reviews de novo questions involving the interpretation and application of statues, Linden v Citizens Ins Co of America, 308 Mich App 89, 91; 862 NW2d 438 (2014). Generally, governmental immunity provides that governmental agencies are immune from tort liability. McCahan v Brennan, 492 Mich 730, 736; 822 NW2d 747 (2012). [B]ecause the government may voluntarily subject itself to liability, it may also place conditions or limitations on the liability imposed. Id. One of these conditions is the notice provision in MCL Id. Absent compliance with this notice provision, a party may not maintain a claim against the state. Id. at 742. MCL provides, in pertinent part: 1 Plaintiffs did not file a notice of intent before filing their complaint. 2 Moreover, plaintiffs present no argument or caselaw for the proposition that it is error to dismiss claims for declaratory and injunctive relief based on a party s failure to comply with notice requirements. Therefore, we need not address this issue. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). -2-

3 (1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. * * * (3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action. A claim is an action for property damage if it involves a harm or injury to a person s right of lawful, unrestricted use of the person s property, regardless of the type of loss. Laurence G Wolf Capital Mgt Trust v City of Ferndale, 269 Mich App 265, ; 713 NW2d 274 (2005). [C]onversion is any distinct act of dominion wrongfully exerted over another s personal property in denial of or inconsistent with his rights therein. Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 497 Mich 337, 346; 871 NW2d 136 (2015) (quotation marks and citations omitted). In this case, plaintiffs alleged that the harm they suffered was defendant s conversion of various payments to plaintiffs to which defendant was not entitled. A claim for conversion is an action for property damage because it involves a harm to a person s lawful, unrestricted use of property. Laurence G Wolf Capital Mgt Trust, 269 Mich App at ; Aroma Wines & Equip, Inc, 497 Mich at 346. Accordingly, the Court of Claims did not err by applying the six-month notice requirements in MCL (3). 3 Plaintiffs further argue that, even if the six-month notice period applies, a new claim accrues each time defendant improperly takes plaintiffs money, and, because defendant improperly took funds from each plaintiff in the six months prior to the filing of the complaint, 3 Plaintiffs argue that the Court of Claims erred by applying the six-month notice provision to their constitutional claims because they were actually asserting a statutory claim for restitution, despite how they labeled the claim at trial, and the one-year notice requirement applies to claims of statutory violations. Alternatively, plaintiffs argue that they have the right to challenge... at any time defendant s actions that violate due process. However, regardless of how the issue is framed, it is waived. A party may not appeal an error that the party created. Clohset v No Name Corp, 302 Mich App 550, 555; 840 NW2d 375 (2013). At the trial court, plaintiffs expressly agreed in their response to defendant s motion for summary disposition that [t]he applicable notice period is six months for the constitutional claim (MCL (3)).... The Court of Claims relied on this statement when deciding this issue. Because any error with this ruling was created by plaintiffs, they are not entitled to appellate relief. -3-

4 they satisfied the six-month notice requirement. We reject this argument because it is indistinguishable from the abrogated continuing-wrongs doctrine. MCL (3) provides that a claimant must file a notice of intent within 6 months of the happening of the event giving rise to the cause of action. MCL (1) states that a claimant must file notice within 1 year after such claim has accrued, and the Michigan Supreme Court has concluded that the only substantive change effectuated in subsection (3) is a reduction in the timing requirement for specifically designated cases. McCahan v Brennan, 492 Mich 730, 741; 822 NW2d 747 (2012). Thus, although MCL (3) does not reference an accrual date, it is substantively referring to one, see id., and plaintiffs are correct that the relevant inquiry is when their claims accrued. At the time plaintiffs in this case received unemployment benefits, MCL (a) 4 provided that if defendant determined that a person had obtained benefits to which the person was not entitled, defendant may initiate actions to recover those benefits, but it shall not recover improperly paid benefits from an individual more than 3 years... after the date of receipt of the improperly paid benefits, unless... the commission issued a determination requiring restitution within the 3-year or 6-year period. Plaintiffs argue, and we accept as true for purposes of this appeal, that defendant was not permitted to collect from them unless defendant issued a determination within the previous three years. 5 Therefore, we accept as true that defendant illegally collected debts from each plaintiff after the three-year statutory period for doing so expired, and then continued to engage in wrongful conduct by continuing to collect the debts. Plaintiffs argue that a separate claim accrued and therefore the six-month period for MCL (3) began to run after each taking after the three-year period expired. Statutory notice requirements are treated the same as statutory limitation periods. Mays v Snyder, Mich App, ; NW2d (2018) (Docket Nos ; ; ), quoting Rusha v Dep t of Corrections, 307 Mich App 300, ; 859 NW2d 735 (2014); slip op at 10 ( We see no reason and plaintiff has provided none to treat statutory notice requirements differently [than statutes of limitations]. ) (Alteration in Mays). Our Legislature provided the general rule for when a claim accrues and the claim s statute of limitation begins to run in MCL , which provides as follows: Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in [MCL to MCL ], and in cases not covered by these sections the claim 4 Because plaintiffs each received benefits under a prior version of this statute, references to this statute in this opinion concern 1995 PA 125, the version in effect from June 30, 1995, to March 29, 2011, when it was replaced by 2011 PA We, like the Court of Claims, presume without deciding that defendant acted improperly under MCL (a), thereby accepting plaintiffs interpretation of this statute. Consequently, it is unnecessary to address the merits of plaintiffs argument in that regard. -4-

5 accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. Thus, a claim accrues when the wrong upon which the claim is based was done regardless of when the damage results. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 289; 769 NW2d 234 (2009), quoting MCL In this case, the wrong upon which the claim is based and consequently when the claim accrued occurred when defendant first attempted to collect the debt from plaintiffs after the three-year period had passed since plaintiffs last redetermination. While plaintiffs might continue to suffer damage as a result of the wrongful and belated collections, plaintiffs are not subject to a new wrong every time defendant collects on the debt. The only way that defendant would be subject to a later accrual date would be if defendant s continual tortious acts delayed the accrual date while the wrongful acts continued, i.e., if the continuing-wrongs doctrine applied. See Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 81; 592 NW2d 112 (1999) (explaining the continuing wrongs doctrine). However, the Michigan Supreme Court has held that the continuing violations or continuing wrongs or continuing torts doctrine is no longer applicable because it is contrary to MCL See Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 282; 696 NW2d 646 (2005). As stated by this Court, the Michigan Supreme Court completely and retroactively abrogated the common-law continuing wrongs doctrine in the jurisprudence of this state[.] Froling, 283 Mich App at 288. Accordingly, we reject plaintiffs continuing-wrongs argument. Applying MCL (3) to plaintiffs in this case, the claims of Sanderson, Louis, and Browne accrued more than six months before the complaint was filed, 6 and the Court of Claims correctly determined that the continuing-wrongs doctrine could not save plaintiffs claims from their failure to abide by the six-month notice period. Accordingly, summary disposition in favor of defendant was proper, and it is unnecessary to address plaintiffs remaining statutory-interpretation arguments. Lastly, plaintiffs argue that the Court of Claims erred when it denied their motion to amend their complaint. However, plaintiffs have abandoned their argument by failing to address the basis for the Court of Claims s decision. See Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004) (stating that if a party does not address the basis of the trial court s decision, this Court need not even consider granting them relief). In this case, plaintiffs argue that leave to amend should be given freely and that they have not been given an opportunity to cure the deficiencies in their complaint. Plaintiffs do not address, much less engage in an analysis of, any reason why allowing an amendment to their complaint would not be futile, as the Court of Claims determined. Moreover, plaintiffs do not dispute the dates forming the basis for the Court of Claims s decision, and, therefore, they have not presented any 6 Morris s claim had not yet accrued at the time of the complaint because his last redetermination was on December 5, 2013, and the three-year collection period had not yet elapsed when plaintiffs filed their complaint on April 12, Accordingly, Morris s claim was not yet ripe. See Huntington Woods v Detroit, 279 Mich App 603, ; 761 NW2d 127 (2008). -5-

6 basis for concluding that they satisfied the notice requirements of MCL Accordingly, plaintiffs are not entitled to relief. Affirmed. /s/ Michael J. Kelly /s/ Colleen A. O'Brien -6-

7 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 JUDY SANDERSON, ALBERT MORRIS, ANTONYAL LOUIS, and MADELINE BROWNE, UNPUBLISHED August 23, 2018 Plaintiffs-Appellants, v No Court of Claims UNEMPLOYMENT INSURANCE AGENCY, LC No MM Defendant-Appellee. Before: SHAPIRO, P.J., and M. J. KELLY and O BRIEN, JJ. SHAPIRO, P.J. (concurring). I concur with the majority that plaintiffs failed to comply with the statutory notice requirement and that the Court of Claims correctly granted defendant summary disposition. I write to offer a somewhat different analysis. My view of the case differs from the majority in two respects. First, I believe that the one-year notice provision, MCL (1), governs this action rather than the six-month provision, MCL (3). Second, I disagree with the majority s conclusion that plaintiffs are relying on the overruled continuing-wrongs doctrine. Rather, plaintiffs correctly argue that each violation of MCL (a) gives rise to a new claim. MCL sets forth the notice requirements for bringing suit against the state: (1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. * * * 1

8 (3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action. MCL (1) is the general notice provision whereas MCL (3) sets forth a special timing requirement applicable to a particular subset of those cases those involving property damage or personal injury. McCahan v Brennan, 492 Mich 730, 752; 822 NW2d 747 (2012). The essence of plaintiffs claims is that their wages and tax refunds have been wrongfully seized by defendant and they seek the return of those funds. 1 In my view, it is too much of a leap to conclude that they are bringing an action for property damage. Under the majority s broad interpretation, seemingly every action where the plaintiff seeks to recover monies wrongfully taken or withheld by the state would have to comply with MCL (3). For example, should the state violate a contract for payment, must the aggrieved party file notice within six months on the theory that its property, i.e., the funds due it, has been damaged, i.e., withheld or converted? I do not believe that this approach is consistent with the text of the statute. 2 The majority relies on Laurence G Wolf Capital Trust v City of Ferndale, 269 Mich App 265; 713 NW2d 274 (2005), which concerned the proprietary function exception to governmental immunity, MCL In that case, the plaintiffs alleged that the defendants, through their land use decisions, id. at 267, tortuously interfered with their established and prospective business relationships.... Id. at 273. The question in that case was whether the plaintiffs were seeking to recover property damage as contemplated by MCL Id. at 270. This Court concluded that the phrase property damage includes injury or harm to one s rights or interests associated with an object. Id. at 271. This Court then determined that the plaintiffs action satisfied that standard because they were essentially alleging that defendants 1 Additionally, I agree with the Court of Claims that plaintiffs conversion claim relies on essentially the same allegations as their constitutional claim. 2 When interpreting statutes, our goal is to discern the Legislature s intent. See Ford Motor Co v Dep t of Treasury, 496 Mich 382, 389; 852 NW2d 786 (2014). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. Id. (quotation marks and citation omitted). 3 MCL provides: The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the governmental agency for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1,

9 interfered with their right of lawful, unrestricted use of their [property] for the particular business purpose that they had negotiated. Id Thus, there was an object, i.e. the business purpose for which the land had been purchased and the value of that object was reduced, i.e., damaged. In the instant case, plaintiffs do not seek to recover for damage to property, they simply seek the return of the property. For those reasons, I would conclude that plaintiffs are not seeking to recover property damage and the general notice provision found in MCL (1) governs their claims. I also diverge from the majority s view that plaintiffs are relying on the continuingwrongs doctrine. In, Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 284; 696 NW2d 646 (2005), the Michigan Supreme Court overruled its prior adoption of the doctrine. But that decision helps explain why the majority s characterization of it is mistaken in this case. In Garg, the plaintiff filed suit in 1995 claiming unlawful retaliation under the Civil Rights Act (CRA), MCL et seq. Id. at 270. She alleged that she was denied multiple promotions after filing a grievance in Id. at 277. The Michigan Supreme Court ruled that plaintiff could not rely on the continuing-wrongs doctrine, id. at 282, and it strictly applied the three-year limitations period. Id. at But, importantly, the Court concluded only that the plaintiffs claims of retaliatory discrimination occurring before the 1992 cut-off date were untimely. Id. at 286. In other words, the plaintiff could not pursuit all of her claims of retaliatory discrimination under a continuing wrongs theory even though the untimely wrongs were similar to the timely ones. But she could still pursuit her timely claims. It follows that each alleged violation of the CRA stood alone as its own claim. This Court applied that reasoning in Dep t of Environmental Quality v Gomez, 318 Mich App 1, 25-28; 896 NW2d 39 (2016). In that case, the Department of Environmental Quality brought a civil action on December 19, 2013, against the defendants after they had unlawfully placed fill material in a wetland over many years. Id. at 6. The defendants argued that the government s action was barred by the six-year limitations period because they first placed fill material in the wetland in Id. at This Court rejected that argument and determined that the defendant violated the wetlands statute each time they deposited fill material in the wetland. Id. This Court reasoned that while the government could not seek enforcement of the violations that occurred before December 19, 2007, it was not barred from initiating an enforcement action for the violations that occurred within the limitations period. Id. at 28. In other words, a party may sue for damages caused by wrongful acts that are within the limitations period, but may not reach back beyond the limitations period even if the timely wrongful acts are similar to those that are untimely. Garg prevents a plaintiff from claiming damages for any acts occurring outside the limitations period, but does not prevent a plaintiff from filing a claim for damages based on wrongful acts that occurred within the period. If the only event within the limitations period is a further accrual of damages from the defendant s untimely wrongful acts then the suit is barred. And where there is a timely wrongful act, the plaintiff may seek damages 3

10 for that act but cannot bootstrap onto it a claim for damages that were actually caused by the untimely act. 4 In this case, plaintiffs claim that defendant violated MCL (a) each time it seized money belonging to plaintiff. 5 [U]nder Garg, each alleged violation of the statute was a separate claim with a separate time of accrual. Gomez, 318 Mich App at 28. Accordingly, a separate claim accrued for every unlawful seizure. Claims that comply with the notice provision may be sustained, even though plaintiffs cannot seek recovery for unlawful collection efforts that occurred more than a year before the filing of the complaint. As Garg and Gomez make clear, this conclusion does not rely on the continuing-wrongs doctrine. My differences with the majority s analysis do not, however, lead me to a different result. Even applying the one-year notice provision, all of plaintiffs claims are untimely. For Sanderson, the last collection effort was on April 9, Browne s tax refunds were intercepted in May 2014, and she alleged that her wages were last garnished in February Defendant redetermined Morris s eligibility for benefits in December Louis s tax returns were intercepted in May and June The April 11, 2016 complaint failed to provide the state one-year s notice of those claims as required. Accordingly, I concur with the affirmance of the Court of Claims. /s/ Douglas B. Shapiro 4 By way of example: Jones punches Smith causing injury to Smith s jaw. Smith s jaw heals over time and Smith does not file suit within the relevant limitations period. Then Jones punches Smith again, again damaging Smith s jaw. Smith may sue Jones for damages caused by this new wrongful act. The fact that the prior incident also involved a punch by Jones and an injury to Smith s jaw does not mean that Smith s suit relies on the continuing-wrongs doctrine. Whether particular damages flowed from the untimely act or the timely act would have to be determined by the factfinder as a matter of causation. 5 Like the majority, I will assume without deciding that defendant violated MCL (a) by recovering improperly paid benefits through administrative action more than three years after the redeterminations in this case became final. 6 Unlike the other plaintiffs, Browne is not claiming that defendant engaged in unlawful collection efforts. Rather, he argues that defendant s redetermination of his eligibility for benefits were time-barred by MCL (a). 7 The Court of Claims indicated that there was a question of fact regarding whether Louis s tax returns were intercepted again in May Even assuming that event occurred, Louis and Browne technically did not provide notice of their claims until the filing of the amended complaint identifying them as plaintiffs in June 2016, over a year after that event. 4