Opinion
No. 347001
04-30-2020
GENOA CHARTER TOWNSHIP, Plaintiff-Appellee, v. JACK HEALY, HEALY HOMES LLC, and, HEALY HOMES AT SUMMERFIELD LLC, Defendants-Appellants.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Livingston Circuit Court
LC No. 18-030006-CK Before: BORRELLO, P.J., and O'BRIEN and CAMERON, JJ. PER CURIAM.
Defendants, Jack Healy, Healy Homes LLC, and Healy Homes at Summerfield LLC, appeal by leave granted the trial court's order granting partial summary disposition to plaintiff, Genoa Charter Township, on plaintiff's claim for declaratory judgment. Plaintiff sought declaratory judgment to enforce a provision of a contract that it had with defendants, wherein defendants agreed to make certain road improvements to roads owned by plaintiff. Defendants argued in the trial court, and continue to argue on appeal, that plaintiff's claim to enforce the parties' contract is barred by the statute of limitations. The trial court held that defendants were equitably estopped from raising the statute of limitations, but even if they were not, the statute of limitations did not bar plaintiff's claim. We conclude that the trial court erred by holding that defendants were equitably estopped from raising the statute of limitations, but correctly held that plaintiff's claim was not barred by the statute of limitations. We therefore affirm.
Genoa Charter Township v Jack Healy, unpublished order of the Court of Appeals, entered April 29, 2019 (Docket No. 347001).
I. BACKGROUND
Adler Enterprises Company, LLC (Adler) entered into a Planned Unit Development (PUD) Agreement with plaintiff in May 2002. The agreement provided for the construction of condominium units on land owned by Adler. Adler and plaintiff later entered into an amended PUD Agreement on February 21, 2003. In both agreements, Adler agreed to make certain improvements to roads within plaintiff's borders. The amended PUD Agreement stated that it "shall run with the Property, and shall bind and inure to the benefit of the heirs, successors, assigns and transferees of the parties to this Agreement." In May 2003, Healy Homes LLC and Healy Homes at Summerfield purchased the approved-but-not-yet-built condominium development from Adler, becoming the successor in interest to the PUD Agreement and its attendant responsibilities.
Defendant Jack is the manager of Healy Homes LLC and Healy Homes at Summerfield. According to Jack, he "stopped all new construction" of condominiums at the development in 2004 because "Michigan's housing market, especially for new condominiums, was devasted" by a national recession. Because of the recession, Jack sent a letter to then-Township Supervisor Gary McCririe on October 9, 2007, stating in relevant part:
We are planning on doing road improvements at the intersection of Lawson and Grand River when we start Phase II of Summerfield Pointe. This may be 2 or 3 years from now depending on the housing market. . . .
As you know Livingston County has been in the worst housing recession since World War II for the last 3½ years, which has slowed and stopped most housing and condominium projects.
According to Jack, this "letter was followed up by a telephone conversation a few days later where Mr. McCririe and [Jack] discussed" how defendants were "not in a position financially to pay for the Road Improvements at that time." In Jack's affidavit, he stated that McCririe "understood the issues facing" defendants, and "asked [Jack] to prepare and fax [McCririe] a letter for him to counter-sign acknowledging that, while [defendants] would ultimately be responsible for the Road Improvements, [defendants were] not required to commence them until [defendants] sought land use permits for the construction of Phases II (units 145-192) and III (units 69-144) at Summerfield Pointe."
On November 12, 2007, Jack, on behalf of Healy Homes LLC and Healy Homes at Summerfield, and McCririe signed a document titled "Summerfield Point Road Improvement Agreement in Genoa Township." The document provided in relevant part:
As the owner of Summerfield Pointe Condominiums, Genoa Township, Livingston County, Healy Homes, L.L.C. understands and accepts the responsibility to provide road improvements at the corner of Grand River and Lawson roads as so stated in the Summerfield Point Planned Development Agreement, page 4, article III. I.
Healy Homes, L.L.C. agrees to install the above road improvements prior to issuance of any Land Use Permit for Phase II Summerfield Point (unites 145-192) or Phase III Summerfield Point (units 69-144).
At this time Healy Homes, L.L.C. can not [sic] state any exact date Summerfield Point Phase II road improvements will be started or needed.
On February 8, 2017, Michael Archinal, who at the time was plaintiff's "Township Manager," sent a letter inquiring about defendants' progress on the road improvements. The letter stated in relevant part:
Several years ago we exchanged correspondence regarding improvements to the Grand River and Lawson intersection as required by the Summerfield Pointe PUD. Because of the crash in the housing market, these improvements were put on hold as were our efforts to compel them.
The housing market has rebounded and Lawson has deteriorated to a deplorable condition. . . . We . . . would like to know when you intend on installing the improvements to the Lawson and Grand River intersection as required by the PUD.
According to Jack, on March 3, 2017, he "set up a meeting with the township" but did "not recall any substantive discussion regarding the Road Improvements."
On March 9, 2017, plaintiff's counsel sent a letter following up on Archinal's February 8 letter. The letter stated in relevant part:
Very shortly the road construction season will be upon us. We would like to arrange a meeting with yourself and the Township officials so that we can come to an agreement as to how to move forward with the improvements to the Lawson/Grand River intersection as required by the Summerfield Pointe Planned Unit Development Agreement.
. . . We would like to have the meeting within the next couple weeks of March.
Apparently, the parties were unable to meet and reach an agreement about the road improvements. On August 24, 2018—over a year and a half after the March 9, 2017 letter—plaintiff filed a complaint seeking a declaratory judgment that defendants were "obligated to immediately undertake the construction of the improvements to Lawson Drive and Grand River Avenue intersection as set forth in" the PUD Agreement.
In defendants' answer, they generally denied plaintiff's allegations. In their affirmative defenses, they asserted that plaintiff's claim was time-barred by the six-year statute of limitations. Defendants also asserted that the claim was barred by a "letter agreement signed by the township supervisor in November 2007."
On November 14, 2018, plaintiff moved for partial summary disposition under MCR 2.116(C)(10). Plaintiff pointed out that because the PUD Agreement was silent on when the improvements to the Grand River and Lawson intersection needed to be completed by, the law presumed a reasonable time for performance. Plaintiff contended that it had asked defendants to make the improvements in an email a year and a half before it filed its case, and that, to date, it had waited "nearly 15 years" since signing the agreement, and the improvements were still not made. According to plaintiff, this was beyond a reasonable time for performance. Plaintiff argued that because a reasonable time had passed and the improvements were still not made, defendants were in breach of the PUD Agreement. Plaintiff acknowledged defendants' argument that the 2007 document signed by Jack and McCririe was an agreement that barred plaintiff's claim, but argued that McCririe, as Township Supervisor, lacked the authority to modify an agreement on plaintiff's behalf. Plaintiff lastly argued that defendants were equitably estopped from asserting a statute-of-limitations defense. According to plaintiff, because defendants "accepted and retained the advantages of the zoning uses granted in exchange for conditions promised in the PUD Agreement for nearly 15 years," defendants were equitably estopped from now asserting that plaintiff's breach-of-contract claim was time-barred.
In defendants' response, they argued that the parties' "agreement" from November 2007 barred plaintiff's claim. Defendants explained that the "agreement" "expressly states that [defendants are] not required to make any road improvements until permits are issued for the development of Phase II . . . and Phase III . . . ." Defendants concluded that because construction of those phases "has neither begun nor has it been completed," defendants were not required to make the road improvements. Defendants alternatively argued that plaintiff's claims were barred by the six-year statute of limitations. Defendants contended that they were required to make the road improvements beginning on the date that the amended PUD Agreement was signed—February 21, 2003—and that their failure to do so at that time was a breach. According to defendants, plaintiff was therefore required to bring its claim before February 21, 2009. Defendants further argued that they were not equitably estopped from asserting a statute-of-limitations defense. According to defendants, they were not contesting the validity of the PUD Agreement in any way, but instead were arguing that the PUD Agreement's road-improvement provision was "not enforceable approximately fifteen years" after defendants were required to make the improvements.
On December 13, 2018, the trial court held a hearing on plaintiff's motion. After oral arguments, the trial court issued the following ruling on the record:
The, uh, I do find that Mr. McCririe was without authority or exceeded his authority to bind the Township. I am going to, I don't believe that there's any question of, uh, as a matter of law, based upon those facts, that summary disposition, partial summary disposition is appropriate under 2.116(C)(10). I don't believe that the statute applies to the extent that you had this letter of agreement. If the statute did apply, I believe it was extended by the nature of this, I don't know what you'd call it, letter, agreement.
But I'm not, I'm not buying the statute of limitations argument. And I am granting the motion for partial summary disposition.
On December 27, 2018, defendants filed an application for leave to appeal with this Court. The application sought review of (1) whether McCririe had the authority to execute the agreement in the 2007 letter on plaintiff's behalf (Issue I in defendants' application) and (2) whether plaintiff's claim was barred by the statute of limitations (Issue II in defendants' application). This Court granted defendants' application in part, "limited to Issue II of the application," and denied leave "[i]n all other regards[.]" Genoa Charter Township v Jack Healy, unpublished order of the Court of Appeals, entered April 29, 2019 (Docket No. 347001).
II. STANDARD OF REVIEW
On appeal, defendants argue that the trial court erred by ruling that they were equitably estopped from asserting the statute of limitations as a defense. Defendants further argue that the trial court erred by ruling that, even if the statute of limitations did apply, it did not bar plaintiff's claim. Whether a cause of action is barred by a statute of limitations, as well as whether a statute of limitations applies, are questions of law reviewed de novo. Collins v Comerica Bank, 468 Mich 628, 631; 664 NW2d 713 (2003); Attorney Gen v Harkins, 257 Mich App 564, 569; 669 NW2d 296 (2003), abrogated on other grounds by Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 283-285; 696 NW2d 646 (2005).
The trial court's ruling that the statute of limitations did not apply, and that if it did apply then plaintiff's claim was not barred, was in the context a motion for summary disposition under MCR 2.116(C)(10). Appellate courts review de novo a trial court's grant of summary disposition. Innovation Ventures v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). In Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999), our Supreme Court explained the process for reviewing a motion filed under MCR 2.116(C)(10):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden, 461 Mich at 120.]A genuine issue of material fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
III. ANALYSIS
We believe it prudent to begin by properly framing the issues on appeal. Ths issues on appeal are (1) whether defendant is equitably estopped from asserting the statute of limitations and (2) whether plaintiff's claim is barred by the statute of limitations. The statute of limitations is an affirmative defense. See MCR 2.111(F)(3)(a). In Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993), this Court explained that an affirmative defense "accepts the plaintiff's allegation as true and even admits the establishment of the plaintiff's prima facie case, but . . . denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff's pleadings." Thus, by arguing that an affirmative defense should bar plaintiff's claim, defendants are admitting the establishment of plaintiff's prima facie case. For that reason, the trial court's decision that defendant was in breach of the PUD Agreement is not in dispute on appeal.
A. EQUITABLE ESTOPPEL
We first address the trial court's decision that the statute of limitations did not apply to plaintiff's claim. Though it did not explain its reasoning for this decision, the ruling was presumably an acceptance of plaintiff's argument that equitable estoppel precluded defendants from asserting the statute of limitations as a defense. In Lothian v City of Detroit, 414 Mich 160, 176-177; 324 NW2d 9 (1982), our Supreme Court recognized that equitable estoppel "may be introduced to counter a statute of limitations defense so as to accomplish the prevention of results contrary to good conscience and fair dealing[.]" (Quotation marks and citation omitted.) The Lothian Court went on to explain:
The trial court stated, "I don't believe that the statute applies . . . ."
Generally, to justify the application of estoppel, one must establish that there has been a false representation or concealment of material fact, coupled with an expectation that the other party will rely upon this conduct, and knowledge of the actual facts on the part of the representing or concealing party.
An overview of Michigan cases addressed to the estoppel theory in the context of the statute of limitations defense discloses that this Court has been reluctant to recognize an estoppel in the absence of conduct clearly designed to induce the plaintiff to refrain from bringing action within the period fixed by statute. [Id. at 177 (quotation marks and citation omitted.)]
Plaintiff does not appear to contend that defendants acted in a way "clearly designed to induce . . . plaintiff to refrain from bringing action within the period fixed by statute." Id. Instead, plaintiff claims that, based on its reading of City of Troy v Aslanian, 170 Mich App 523; 428 NW2d 703 (1988), a party can assert equitable estoppel to counter a statute-of-limitations defense "where a party has made a promise in exchange for a variance, and that party has accepted and benefitted from the variance."
Plaintiff's reliance on Aslanian for this proposition is misplaced. The defendants in Aslanian bought property zoned as light industrial, but "[t]he property was nonconforming in two respects: First, a small residence located thereon violated its zoned use; and second, a garage was within fifty feet of the front yard setback from John R Road, a major thoroughfare in Troy." Aslanian, 170 Mich App at 525. The defendants applied for a variance to the Zoning Board of Appeals (ZBA) "to expand the nonconforming uses," and the ZBA granted the defendants' requested variance "on the condition that they use the residence as a home on a temporary basis only and that they not use the residence as a rental unit in the future." Id. The plaintiff later sought to acquire a portion of the defendants' property, but the parties could not agree as to the property's value, so the matter was scheduled for trial. Id. Before trial, the defendants sought to exclude the city's appraisal of the property, asserting "that the evidence should be barred because it was premised upon the unlawful action of the ZBA in March of 1979 which restricted [the defendants'] use of the property as a personal residence only." Id. at 526. The trial court granted the motion, and this Court granted the plaintiff's application for leave to appeal. The sole issue on appeal was "[w]hether the conditions placed upon [the defendants'] property constituted a forced dedication thereof so as to invalidate any appraisals which consider those conditions in evaluating the property." Id. After explaining that the ZBA had statutory authority to impose conditions "appurtenant to a zoning variance," id. at 526-528, this Court held that "the conditions placed upon [the defendants'] property were valid" and "the conditions were not so restrictive as to constitute a forced dedication or confiscation of the land," id. at 529. After making these holdings, the Aslanian Court also stated:
It is also important to note that [the defendants] have apparently taken full advantage of the variances granted to them by the city while now attempting to avoid the conditions thereon.
A party who has accepted and retained the advantages of a variance granted on condition is estopped to attack the propriety of the condition and will be deemed to have waived any error with respect to the imposition of the condition. [101A CJS, Zoning & Land Planning, § 238, p 691.]
We therefore hold that [the defendants] should be estopped from challenging imposition of the conditions more than seven years after the fact and after having taken full advantage of the variance. [Aslanian, 170 Mich App at 529-530.]
Clearly, Aslanian has no application for whether defendants here are equitably estopped from asserting the statute of limitations as a defense. That case did not make a new rule for when a party is equitably estopped from asserting the statute of limitations; it simply repeated the well-established rule that a party who accepts and benefits from a zoning variance granted on condition waives any error with respect to the imposition of the condition. The rule for when a party is equitably estopped from asserting the statute of limitations is outlined in Lothian, where our Supreme Court explained that "to justify the application of estoppel, one must establish that there has been a false representation or concealment of material fact, coupled with an expectation that the other party will rely upon this conduct, and knowledge of the actual facts on the part of the representing or concealing party." Lothian, 414 Mich at 177. Plaintiff does not argue that defendants made a false representation or concealed a material fact, with knowledge of the actual facts, that induced plaintiff to refrain from bringing its cause of action within the applicable limitations period. Thus, the trial court erred by holding as a matter of law that defendants were equitably estopped from asserting the statute of limitations as a defense.
We acknowledge that plaintiff argues that defendants took actions that "led [plaintiff] to believe that [defendants] would complete [their] obligations." Yet plaintiff does not argue that defendants made any false representations or concealed material facts with knowledge of the actual facts, as required to equitably estop defendants from asserting the statute of limitations as a defense. See Lothian, 414 Mich at 177.
B. STATUTE OF LIMITATIONS
We nonetheless affirm the trial court's decision because it correctly held that plaintiff's claim is not barred by the statute of limitations.
Plaintiff's claim sought a declaratory judgment that defendants were required to make the road improvements that they agreed to make in the PUD Agreement. Declaratory judgment actions are governed by the statute of limitations applicable to the underlying claim for substantive relief. Taxpayers Allied for Constitutional Taxation v Wayne Co, 450 Mich 119, 128; 537 NW2d 596 (1995). Plaintiff's underlying substantive claim is for breach of contract. MCL 600.5807 governs the limitations period for breach-of-contract claims. See Miller-Davis Co v Ahrens Const, Inc, 489 Mich 355, 358; 802 NW2d 33 (2011). Under MCL 600.5807(9), the limitations period for plaintiff's claim was six years. The limitations period began to run "after the claim first accrued . . . ." MCL 600.5807(1). "A claim accrues, for purposes of the statute of limitations, when suit may be brought." American Federation of State, Co & Muni Employees v Highland Park Sch Dist Bd of Ed, 457 Mich 74, 90; 577 NW2d 79 (1998). "For contract actions, the limitation period generally begins to run on the date of the contract breach." Id.
Defendants argue that plaintiff's claim accrued on the day that the amended PUD Agreement was signed—February 21, 2003. Other than broad assertions that "the parties' understanding [was] that the Lawson Road improvements were to be completed immediately and that [defendants were] obligated to perform them after acquiring the development," defendants point to nothing in the text of the PUD Agreement to support their theory that the agreement required the road improvements to be completed immediately, and that defendants' failure to complete the road improvements immediately was a breach of contract. To the contrary, the PUD Agreement is silent as to when the road improvements were to be made.
In such a situation, Michigan jurisprudence is clear: when a contract is silent as to time of performance, the law will presume a reasonable time. Duke v Miller, 355 Mich 540, 543; 94 NW2d 819 (1959). See also Brady v Cent Excavators, 316 Mich 594, 607; 25 NW2d 630 (1947). Thus, plaintiff's claim did not accrue on February 21, 2003, and defendants' argument that plaintiff had to bring its claim before February 21, 2009, is incorrect.
Defendants argue that this case is analogous to Harkins. In Harkins, the plaintiff's claim accrued when the defendant completed work on his property that was in violation of his modified permit. Id. at 572. That is, the defendant took an affirmative action that violated his permit, clearly causing the plaintiff's claim to accrue. Defendants do not point to any affirmative act that they took that caused plaintiff's claim to accrue, so this case is not similar to Harkins.
As our Supreme Court has explained, "When the question of reasonable time depends . . . upon the construction of a contract in writing or upon undisputed facts outside of the contract, it becomes a matter of law." Reinforced Concrete Co v Boyes, 180 Mich 609, 616; 147 NW 577 (1914). Plaintiff argued in the court below, and the trial court agreed, that 15 years was an unreasonable time for nonperformance as a matter of law, and therefore defendants were in breach of the contract. As explained above, that decision is not contested on appeal.
Instead, defendants make a series of arguments contending that, if they had a "reasonable time" to perform under the contract, then plaintiff's claim should have been barred by the statute of limitations because, as a matter of law, a "reasonable time" for performance elapsed more than six years before plaintiff filed its claim. Defendants' arguments are unconvincing.
Defendants first argue that if plaintiff's claim accrued after a "reasonable time," then this Court should hold that a reasonable time was two years. In support of this argument, defendants point to Brow v Gibraltar Land Co, 249 Mich 662, 664-665; 229 NW 604 (1930), where our Supreme Court held that the defendant's failure to make agreed-upon improvements to the plaintiff's property within two years was a breach of the parties' contract because, although the contract did not specify when the improvements needed to be made by, the law required the improvements to be made within a reasonable time. Contrary to defendants' assertions, Brow did not hold that a "reasonable time" for performing under a contract is two years as a matter of law, and that case is otherwise distinguishable because the contract there stated that time was "of the essence." Id. at 665.
Defendants also argue that the amended PUD Agreement gives dates for when other improvements to the property were to be made by, so this Court can assume that the road improvements also needed to be made by those dates. Yet there is nothing in the language of the contract to support reading it that way. Moreover, when a contract is silent as to when an obligation is to be performed, the law presumes a reasonable time. Duke, 355 Mich at 543. The law does not use some other date in the contract as the date by which the obligation needs to be completed.
Defendants lastly cite to Genoa Township Zoning Ordinance § 10.09.02—which states, "Final site plan approval of a PUD, PUD phase or a building within a PUD shall be effective for a period of three (3) years"—and argue that "the PUD Agreement . . . was only effective for three years," so defendants "only had until February 21, 2006 [three years after the amended PUD Agreement was signed] to complete construction of the improvements under the Township's zoning ordinance." Yet Genoa Township Zoning Ordinance § 10.09.02 does not refer to the PUD Agreement. Thus, defendant's argument is based on a mistaken premise; while the "[f]inal site plan approval of a PUD, PUD phase or a building within a PUD" may expire after three years under Genoa Township Zoning Ordinance § 10.09.02, the PUD Agreement does not.
Lastly, defendants argue that because the PUD Agreement is silent as to when defendants had to perform the road improvements, and because in such situations the law presumes a reasonable time for performance, see Duke, 355 Mich at 543, there is a question of fact when plaintiff's claim accrued, and in turn whether the statute of limitations had run by the time plaintiff filed its claim. In other words, defendants argue that a factfinder must determine the date by which defendants were required to make the road improvements under the PUD Agreement. That would be the date that defendants breached the contract, and thus when plaintiff's claim accrued. If that date was more than six years before plaintiff filed its complaint, then the statute of limitations barred plaintiff's claim.
Problematically, defendants never raised this argument in the trial court or in their application for leave to appeal. While defendants raised the statute of limitations as a defense in the trial court, defendants never argued that there was a question of fact whether plaintiff's claim was barred by the statute of limitations. Instead, defendants exclusively argued that plaintiff's claim was time-barred because the limitations period began running the day the parties signed the amended agreement.
As our Supreme Court explained in Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008):
Michigan generally follows the "raise or waive" rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a "failure to timely raise an issue waives review of that issue on appeal."Our Supreme Court has further cautioned that the power to ignore preservation requirements "is to be exercised quite sparingly[.]" Napier v Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987). Because defendant never raised in the trial court the question-of-fact argument that it now raises on appeal, we conclude that defendant waived appellate review of the issue.
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court's attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute. [Citations omitted.]
While we need not address the issue further, we note that we could alternatively rule that defendants waived this issue because it failed to properly plead the affirmative-defense argument that it now argues on appeal. When a party asserts an affirmative defense, it must state the facts constituting the affirmative defense and the grounds for that defense, MCR 2.111(F)(3)(a) and (c), and the party has the burden of introducing evidence to support the affirmative defense, Palenkas v Beaumont Hosp, 432 Mich 527, 548; 443 NW2d 354 (1989). "The failure to raise an affirmative defense as required by the court rule constitutes a waiver of that affirmative defense." Stanke, 200 Mich App at 312. This Court strictly enforces MCR 2.11(F)(3)'s pleading requirements. Dell, 312 Mich App at 757 n 64. Defendants' failure to adhere to MCR 2.111(F)(3)'s requirements—meaning their failure to plead facts supporting the ground for the statute-of-limitations defense that they now pursue on appeal—constituted a waiver of the argument. See Stanke, 200 Mich App at 312.
IV. CONCLUSION
We hold that the trial court erred by holding that defendants were equitably estopped from asserting the statute of limitations, but correctly held that plaintiff's claim was not barred by the statute of limitations.
Affirmed.
/s/ Stephen L. Borrello
/s/ Colleen A. O'Brien
/s/ Thomas C. Cameron