Opinion
No. 163949
07-24-2023
SUNRISE RESORT ASSOCIATION, INC., Gregory P. Somers, Melissa L. Somers, and Karl Berakovich, Plaintiffs-Appellees, v. CHEBOYGAN COUNTY ROAD COMMISSION, Defendant-Appellant.
Aaron J. Gauthier, J. Harris Law, PC, Petoskey (by Jennifer J. Schafer) for plaintiffs. Henn Lesperance PLC (by William L. Henn, Benjamin M. Dost, and Andrea S. Nester) for defendant. Fahey Schultz Burzych Rhodes PLC, Okemos (by Stacy L. Hissong and Stephen J. Rhodes) for Michigan Association of County Drain Commissioners, Michigan Townships Association, and Michigan Association of Counties, amici curiae.
Aaron J. Gauthier, J.
Harris Law, PC, Petoskey (by Jennifer J. Schafer) for plaintiffs.
Henn Lesperance PLC (by William L. Henn, Benjamin M. Dost, and Andrea S. Nester) for defendant.
Fahey Schultz Burzych Rhodes PLC, Okemos (by Stacy L. Hissong and Stephen J. Rhodes) for Michigan Association of County Drain Commissioners, Michigan Townships Association, and Michigan Association of Counties, amici curiae.
BEFORE THE ENTIRE BENCH
OPINION
Clement, C.J.
329The plaintiffs brought this action after the defendant modified a storm water drainage system, allegedly causing flooding onto their property. The plaintiffs raised two distinct claims that remain at issue on appeal: a claim under the sewage-disposal-system-event (SDSE) exception to governmental immunity under the governmental tort liability act (GTLA), MCL 691.1401 et seq., and a common-law trespass-nuisance claim seeking injunctive relief.
The trial court dismissed both claims as untimely under the applicable three-year statute of limitations. Like the Court of Appeals, we disagree and hold that the SDSE claim, which seeks relief only in connection with flooding that occurred within the three-year window, was timely. However, unlike the Court of Appeals, we conclude that because the defendant is immune with respect to the plaintiffs’ common-law trespass-nuisance claim, that claim was properly dismissed. In light of this holding, we vacate as unnecessary the Court of Appeals’ holding that the trespass-nuisance claim was timely. Finally, because the plaintiffs only seek injunctive relief in connection with that claim, 330their request for an injunction is invalid. Therefore, we reverse the trial court’s grant of summary disposition to the defendant with respect to the plaintiffs SDSE claim, affirm with respect to the commonlaw trespass-nuisance claim, and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The plaintiffs are a group of landowners who own property on West Burt Lake Road. In 2020, they initiated this lawsuit against the defendant, the Cheboygan County Road Commission. In their amended complaint, the plaintiffs alleged that the defendant oversees a storm water drainage system that directs water through a series of ditches and culverts, some of which pass through the plaintiffs’ respective properties. In 2013, when a bicycle path was constructed along West Burt Lake Road, the defendant modified the drainage system. In 2015, after the bicycle path was washed out, the defendant modified the drainage system again to prevent another washout. Thereafter, Sunrise Resort Association, Inc., contacted the defendant to explain that it had suffered "minor damage" from these modifications and that more severe damage would likely result if the drainage system was not fixed. Then, in 2018, the plaintiffs’ properties sustained significant damage by way of erosion caused by an overflow and backup of the defendant’s storm water drainage system.
Sunrise Resort Association, Inc., Gregory P. Somers, Melissa L. Somers, and Karl Berakovich.
In their amended complaint, the plaintiffs raised three counts. First, they brought a claim under MCL 691.1417(3) of the SDSE exception to the GTLA. Under 331this claim, the complaint stated that the . "overflow and backup referenced previously in this complaint"—i.e., the 2018 overflow and backup—"was an ‘event’ as defined by MCL 691.1416(k)." The SDSE claim does not directly refer to the alleged minor flooding that occurred sometime around 2015.
Second, the plaintiffs brought a gross-negligence claim. Because they conceded in the trial court that this claim was barred by governmental immunity, it is not at issue on appeal, and we will discuss it no further.
And third, the plaintiffs brought a claim for injunctive relief to abate an ongoing trespass-nuisance. The complaint states that because the ongoing nuisance "cannot be remedied by money damages alone," it can "only be remedied by injunctive relief …." In their prayer for relief, the plaintiffs request both money damages and injunctive relief, but they expressly tie their request for injunctive relief to the trespass-nuisance claim alone.
In response to the plaintiffs’ amended complaint, the defendant moved for summary disposition under MCR 2.116(C)(7). It argued first that the SDSE claim was untimely under the applicable three-year statute of limitations. See MCL 600.5805(2). And second, it argued that the plaintiffs’ claim for injunctive relief to abate an ongoing trespass-nuisance must be dismissed because injunctive relief is categorically unavailable under the SDSE exception to the GTLA.
Following a hearing, the trial court granted summary disposition under MCR 2.116(C)(7) to the defendant. It held that the plaintiffs’ SDSE claim began to accrue in 2015, when the minor flooding occurred and that, therefore, the claim was not timely under the three-year statute of limitations. Next, it held that the plaintiffs’ claim for injunctive relief failed for two 332reasons. First, it was also untimely. And second, because the SDSE exception abrogated the common-law trespass-nuisance exception to governmental immunity, the defendant was immune with respect to the claim.
On appeal, the Court of Appeals reversed and remanded for further proceedings. Sunrise Resort Ass’n, Inc. v Cheboygan Co. Rd. Comm., 339 Mich App 440, 983 N.W.2d 436 (2021). The Court of Appeals held that both the plaintiffs’ SDSE claim and common-law claim were timely. The panel reasoned that the claims did not accrue until 2018, when the overflow and backup occurred and that, therefore, the claims fell within the applicable statutory limitations period. Id. at 451, 983 N.W.2d 436. It also concluded that injunctive relief was broadly available under the SDSE exception to avoid future harm rather than remedy past harms. Id. at 456-457, 983 N.W.2d 436. For those reasons, the panel concluded that the trial court erred by granting summary disposition with respect to both the SDSE claim and the commonlaw claim.
The defendant then sought leave to appeal in this Court, and we ordered oral argument on the application to address:
(1) [W]hether the [plaintiffs’] claims accrued in 2015 and are barred by the applicable statute of limitations; and (2) whether the [plaintiffs’] claim for injunctive relief is barred by the Government Tort Liability Act, MCL 691.1401 et seq., and/or other applicable law, or is otherwise not obtainable as the functional equivalent of a claim for a writ of mandamus. [Sunrise Resort Ass’n, Inc. v Cheboygan Co. Rd. Comm., 509 Mich. 983, 984, 973 N.W.2d 914 (2022).]
We now affirm the Court of Appeals’ conclusion that the plaintiffs’ SDSE claim was timely and not barred by the applicable three-year statute of limitations. However, we reverse its conclusion that injunctive 333relief was available to the plaintiffs. We hold that the common-law exception to immunity for trespass-nuisance claims was abrogated by the Legislature’s passage of the SDSE exception to the GTLA. MCL 691.1417(2). Because the plaintiffs only sought injunctive relief in connection with a claim from which the defendant is immune, we hold that the request for an injunction is invalid. Therefore, we reverse the trial court’s grant of summary disposition with respect to the SDSE claim because it is timely. But we affirm the trial court’s grant of summary disposition with respect to the common-law claim because the defendant is immune from it.
II. LEGAL BACKGROUND
A. STANDARD OF REVIEW
[1, 2] The defendant moved for summary disposition under MCR 2.116(C)(7), which allows for "dismissal of the action" because of "immunity granted by law or statute of limitations …. " We review de novo a trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). When a party brings a motion for summary disposition under MCR 2.116(C)(7), "[t]he contents of the complaint are accepted as true unless contradicted by the documentation submitted by the movant." Id. at 119, 597 N.W.2d 817. For purposes of this appeal, the defendant concedes that the facts in the plaintiffs’ amended complaint are accepted as true.
[3–6] We also review de novo questions of statutory interpretation. Madugula v Taub, 496 Mich. 685, 695, 853 N.W.2d 75 (2014). The goal of statutory interpretation is to effectuate the intent of the Legislature. Id. at 696, 853 N.W.2d 75. To do so, we "focus[ ] first on the statute’s plain language" 334and "examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme." Id. (citations and quotation marks omitted). "When a statute’s language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written." Id. (citations and quotation marks omitted).
B. THE SDSE EXCEPTION TO THE GTLA
[7] The GTLA established a general rule that a "governmental agency is immune from tort liability if the government agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). This Court has explained that "the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly con- strued." Nawrocki v Macomb Co. Rd. Comm., 463 Mich. 143, 158, 615 N.W.2d 702 (2000).
In 2002, the Legislature passed the SDSE exception to the GTLA. MCL 691.1416 through MCL 691.1419. Under the SDSE exception:
A governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event and the governmental agency is an appropriate governmental agency. [MCL 691.1417(2).]
[8] In short, the SDSE exception immunizes governmental agencies unless (1) there is a sewage disposal system event and (2) the governmental agency is an appropriate governmental agency. The statute defines a "sewage disposal system event" to mean "the overflow or backup of a sewage disposal system onto real property." MCL 691.1416(k). While the statute carves out several exceptions under which such an overflow or backup will not constitute a "sewage disposal system 335event," accepting the allegations in the plaintiffs’ complaint as true, none of the exceptions applies here. Id. Similarly, accepting the allegations as true, the defendant constitutes an "appropriate governmental agency" under the statutory definition. MCL 691.1416(b).
The SDSE statute also specifies the required showing that a plaintiff must make when seeking "compensation for the property damage or physical injury" caused by an "event." MCL 691.1417(8). A plaintiff must "show[ ] that all of the following existed at the time of the event:"
(a) The governmental agency was an appropriate governmental agency.
(b) The sewage disposal system had a defect.
(c) The governmental agency knew, or in the exercise of reasonable diligence should have known, about the defect.
(d) The governmental agency, having the legal authority to do so, failed to take reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect.
(e) The defect was a substantial proximate cause of the event and the property damage or physical injury. [Id.]
[9] Therefore, even if a plaintiff can avoid governmental immunity by showing there was a "sewage disposal system event" from a sewage disposal system overseen by an "appropriate governmental agency," they must still provide additional proof to recover compensation through the SDSE exception’s statutory cause of action under § 1417(3). MCL 691.1417(2) and (3).
336III. THE TIMELINESS OF THE PLAINTIFFS’ SDSE CLAIM
A. THE STATUTE OF LIMITATIONS UNDER THE SDSE EXCEPTION
[10] Under the GTLA, "[e]very claim against any government agency shall be subject to the general law respecting limitations of actions …." MCL 691.1411(1). This provision applies to claims brought under the SDSE exception to the GTLA. The applicable statutory period of limitations here is three years. MCL 600.5805(1) and (2). Under MCL 600.5827, "the period of limitations runs from the time the claim accrues." "[T]he claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." Id.
[11, 12] We have explained that the claim "accrues" under MCL 600.5827 "when all of the elements of the cause of action have occurred and can be alleged in a proper complaint." Connelly v Paul Rud- dy’s Equip. Repair & Serv. Co., 388 Mich. 146, 150, 200 N.W.2d 70 (1972). Accrual occurs when the "wrong is done," meaning the moment "when the plaintiff is harmed rather than when the defendant acted." Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich. 378, 388, 738 N.W.2d 664 (2007) (quotation marks omitted), quoting Boyle v Gen Motors Corp, 468 Mich. 226, 231 n 5, 661 N.W.2d 557 (2003).
B. THE PLAINTIFFS’ SDSE CLAIM ACCRUED IN 2018
We agree with the Court of Appeals that because the plaintiffs’ SDSE claim did not accrue until 2018, they timely filed their complaint for that claim. Therefore, we agree that the trial court erred by granting summary disposition under MCR 2.116(C)(7) on statute-of-limitations grounds. The Court of Appeals explained that a claim " ‘accrues when all of the elements of the 337cause of action have occurred and can be alleged in a proper complaint,’ " and that a claim under § 1417(3) of the SDSE exception requires an " ‘overflow or backup’ " of a sewage system onto property. Sunrise Resort, 339 Mich App at 450-451, 983 N.W.2d 436, quoting Connelly, 388 Mich. at 150, 200 N.W.2d 70, and MCL 691.1416(k). The panel concluded that "[a] plain reading of plaintiffs’ complaint shows that it is premised on a specific, discrete backup event" in 2018, and that "plaintiffs are seeking to recover for damages that occurred only on that occasion." Sunrise Resort, 339 Mich. App. at 451, 983 N.W.2d 436. Therefore, the panel concluded, the claim did not accrue until 2018 and the complaint was timely filed.
[13] We agree that the plaintiffs’ amended complaint, on its face, only seeks to recover for damage caused by the 2018 overflow or backup event. Each "sewage disposal system event," as defined by MCL 691.1416(k), may give rise to an independent cause of action for which the government may be liable under the SDSE exception if the remaining elements in MCL 691.1417(3) can be established in relation to that particular "event." See Connelly, 388 Mich. at 150, 200 N.W.2d 70 (stating that a claim accrues "when all of the elements of the cause of action have occurred and can be alleged in a proper complaint"). While the plaintiffs refer to the alleged "minor flooding" that occurred in 2015 in the factual section of their complaint, in the section labeled "COUNT I. CLAIM PURSUANT TO MCL 691.1417(3)," they only argue that the "overflow and backup referenced previously in this complaint" constituted.338 an "event" under § 1416(k) of the SDSE exception that would allow them to steer around governmental immunity and recover compensation. And the overflow and backup previously referred to in the complaint was clearly the 2018 flooding, not the 2015 flooding. Because we must "look to plaintiff’s complaint to determine when the wrong upon which the claim is based was done," here, the "wrong" was the event that occurred in 2018. Therefore, the complaint was timely filed within the three-year limitations period. Fraser Twp v Haney, 509 Mich. 18, 24, 983 N.W.2d 309 (2022).
That distinguishes this cause of action from one in which an isolated incident caused successive injuries that do not give rise to a new cause of action. Connelly, 388 Mich. at 151, 200 N.W.2d 70 ("Later damages may result [from an isolated negligent act], but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.").
We also agree with the Court of Appeals that, contrary to the defendant’s assertion, the plaintiffs are not attempting to rely on the now-abrogated continuing-wrongs doctrine. Sunrise Resort, 339 Mich App at 452, 983 N.W.2d 436; see also Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263, 266, 696 N.W.2d 646 (2005). That doctrine provided that "[w]here a defendant’s wrongful acts are of a continuing nature, the period of limitations will not run until the wrong is abated …." Horvath v Delida, 213 Mich App 620, 626-627, 540 N.W.2d 760 (1995). As we recently explained, the continuing-wrongs doctrine provided plaintiffs a method to "reach back to recover for wrongs that occurred outside the statutory period of limitations" when there were distinctive wrongs within a continuing series. Haney, 509 Mich. at 27, 983 N.W.2d 309.
We agree with the Court of Appeals that the "abrogation of the continuing-wrongs doctrine means that plaintiffs are prohibited from relying on the harm caused by the 2018 event to argue any claim based on the 2015 incident is timely" because they are a series of continuing harms. Sunrise Resort, 339 Mich App at 452-453, 983 N.W.2d 436. But the discontinuation of the continuing 339wrongs doctrine does not prevent the plaintiffs from recovering damages associated with the 2018 flooding.
[14] Haney is instructive here. In Haney, the defendants kept pigs on property zoned for commercial use. Haney, 509 Mich. at 20-21, 983 N.W.2d 309. The plaintiffs sued, alleging that the piggery constituted a zoning violation and a nuisance, only resolvable through an injunction. Id. at 21, 983 N.W.2d 309. As the defendant does here, the Haney defendants argued that the action was time-barred because the pig problems began outside the applicable six-year statute of limitations. Id. We disagreed. We noted that the "wrong alleged in plaintiffs complaint [wa]s defendants’ keeping of hogs on their property," which was a continuing problem and a violation of the zoning ordinance every day that the pigs remained. Id. at 25, 983 N.W.2d 309. While the wrong had begun long before the six-year limitations period passed, the plaintiffs did not seek a remedy for those long-past pig problems—rather, by seeking an injunction, the plaintiffs sought relief for "only present violations." Id. at 21, 983 N.W.2d 309. This Court explained that when we abrogated the continuing-wrongs doctrine, we "simply held that a plaintiff may not recover for injuries that fall outside the statutory period of limitations." Id. at 29, 983 N.W.2d 309, discussing Garg, 472 Mich. at 282, 696 N.W.2d 646. We did not "immunize future wrongful conduct." Haney, 509 Mich. at 28, 983 N.W.2d 309, discussing Garg, 472 Mich. 263, 696 N.W.2d 646. "[A] plaintiff’s failure to timely sue on the first violation in a series does not grant a defendant immunity to keep committing wrongful acts of the same nature." Haney, 509 Mich. at 28, 983 N.W.2d 309. Rather, "[a] plaintiff is free to bring a new action each time a defendant commits a new violation." Id. at 28-29, 983 N.W.2d 309.
The logic of Haney plainly applies here. While the plaintiffs seek monetary damages for the 2018 flooding, rather than an injunction, the distinction is irrelevant. 340Because the plaintiffs’ amended complaint alleges, under the SDSE exception, harm caused by a discrete sewage disposal system event that occurred within the three- year limitations period, each event has the potential to be its own independent cause of action, and plaintiffs do not seek to reach back and recover for any potential harms that may have occurred before that date, the continuing-wrongs doctrine is inapplicable. A contrary holding would require plaintiffs to file SDSE claims at the first flooding or forever lose their leverage to urge the government to remedy defects in sewage disposal systems. This would be particularly puzzling considering that two required elements of an SDSE claim are that the governmental agency knew (or should have known) of the defect and it failed to take reasonable corrective actions within a reasonable period. MCL 691.1417(3)(c) and (d).
For all these reasons, we affirm the Court of Appeals’ conclusion that the plaintiffs’ SDSE claim was timely filed and reverse the trial court’s decision granting summary disposition to the defendant on statute-of-limitations grounds.
IV. THE PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF
A. ABROGATION OF THE COMMON LAW UNDER THE SDSE EXCEPTION
We must now address the plaintiffs’ request for injunctive relief attached to their common-law trespass-nuisance claim. Before the enactment of the GTLA, there existed common-law immunity for government actors. In fact, there was a "long history in Michigan jurisprudence" of recognizing a trespass-nuisance exception to governmental immunity. Hadfield v Oakland Co Drain Comm’r, 430 Mich. 139, 145, 422 N.W.2d 205 (1988), overruled by Pohutski v Allen 341 Park, 465 Mich. 675, 641 N.W.2d 219 (2002). Since the GTLA’s passage, courts have grappled with the intersection of the common-law rules of governmental immunity and the rules spelled out in the GTLA itself.
The SDSE exception to the GTLA contains an express provision concerning the abrogation of the common law that is integral to this case. It states:
[The SDSE exception] abrogate[s] common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system and provide[s] the sole remedy for obtaining any form of relief for damages or physical injuries caused by a sewage disposal system event regardless of the legal theory. [MCL 691.1417(2).]
The statutory language makes clear that the SDSE exception abrogates commonlaw exceptions to immunity that might apply under the facts of a particular case. It then goes on to clarify that when a plaintiff seeks "any form of relief for damages or physical injuries," the SDSE exception provides the "sole remedy." Id.
B. THE PLAINTIFFS CANNOT SEEK INJUNCTIVE RELIEF
We hold that the trespass-nuisance exception to governmental immunity was abrogated by the plain language of § 1417(2) of the SDSE exception; therefore, defendant is immune from that claim, and it must be dismissed.
[15–17] " ‘The Legislature may alter or abrogate common law through its legislative authority.’ " McMaster v DTE Energy Co., 509 Mich. 423, 433, 984 N.W.2d 91 (2022), quoting Murphy v Inman, 509 Mich. 132, 153, 983 N.W.2d 354 (2022). But "[w]e will not lightly presume that the Legislature has abrogated the common law …." McMaster, 509 Mich. at 434, 984 N.W.2d 91 (citations, quotation342 marks, and brackets omitted), quoting Murphy, 509 Mich. at 153, 983 N.W.2d 354. "[T]he Legislature should speak in no uncertain terms when it exercises its authority to modify the common law." McMaster, 509 Mich. at 434, 984 N.W.2d 91 (quotation marks and citation omitted), quoting Murphy, 509 Mich. at 153, 983 N.W.2d 354. Relevant here, § 1417(2) of the SDSE exception states clearly that the Legislature intended to "abrogate common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system." MCL 691.1417(2). It is hard to imagine the Legislature speaking in more certain terms than it has in § 1417(2); the statutory language clearly abrogates any common-law exceptions to governmental immunity—including the trespass-nuisance exception—when a plaintiff alleges there has been an overflow or backup of a sewage disposal system.
[18] Because the plaintiffs’ amended complaint alleges that there was an overflow or backup of a sewage disposal system onto their property, they cannot maintain their trespass-nuisance claim. Stated differently, because § 1417(2) of the SDSE exception abrogated the trespass-nuisance exception to governmental immunity, the defendant is immune from this claim, and it must be dismissed. Accordingly, we also vacate as unnecessary the Court of Appeals’ holding that the plaintiffs’ trespassnuisance claim was timely.
In their prayer for relief, the plaintiffs sought injunctive relief only in connection with this now-abrogated common-law claim for trespass-nuisance. Because the request for injunctive relief is tied expressly to a claim that the plaintiffs cannot maintain, we hold that they cannot seek injunctive relief in this case. Therefore, we reverse the Court of Appeals contrary conclusion that the plaintiffs’ "claim for injunctive relief is permitted by MCL 691.1417(2) and not 343prohibited by the elimination of the trespass-nuisance exception to governmental immunity …." Sunrise Resort, 339 Mich.App. at 454, 983 N.W.2d 436.
The Court of Appeals focused on whether the SDSE exception barred the general ability to request an injunction to remedy an overflow or backup of a sewage disposal system. Id. at 457, 983 N.W.2d 436. We leave open the question of whether a plaintiff can seek injunctive relief in connection with an SDSE claim properly pled under § 1417(3) for a later date. Our holding today is narrower. As applied to the plaintiffs’ amended complaint in this case, we hold that injunctive relief was unavailable because it was sought only in connection with a clearly abrogated common-law claim. For these reasons, we reverse the Court of Appeals’ conclusion that the plaintiffs could seek an injunction.
V. CONCLUSION
We hold that the plaintiffs’ SDSE claim is timely under the applicable three-year statute of limitations. Because their amended complaint argues that the flooding only in 2018 constituted an "overflow or backup" under the SDSE exception, and they clearly seek relief in connection only with that flooding, the SDSE claim was timely. The now-abrogated continuing- wrongs doctrine does not apply to this case because the plaintiffs do not seek to grandfather any prior flooding into the action.
However, we hold that the defendant is immune from the plaintiffs’ common-law trespass-nuisance claim. Section 1417(2) of the SDSE exception evinces clear legislative intent to abrogate all common-law exceptions to governmental immunity, including the trespass-nuisance exception. Because the plaintiffs only sought injunctive relief in connection with their 344common-law trespass-nuisance claim, we reverse the Court of Appeals’ conclusion that they could seek an injunction in this instance. We reserve any broader conclusions about the availability of injunctive relief in connection with a properly pled SDSE claim under § 1417(3) for the future.
Because we conclude the SDSE claim is timely, we reverse the trial court’s grant of summary disposition to the defendant with respect to the plaintiffs’ claim brought under the SDSE exception. However, we affirm the trial court’s grant of summary disposition with respect to the common-law trespass-nuisance claim because the defen- dant is immune from it. We also vacate the Court of Appeals holding that the trespass-nuisance claim was timely. Finally, we remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Zahra, Viviano, Bernstein, Cavanagh, Welch, and Bolden, JJ., concurred with Clement, C.J.