                          STATE OF MICHIGAN

                            COURT OF APPEALS



REID COWAN,                                                          UNPUBLISHED
                                                                     May 22, 2018
               Plaintiff-Appellant,

v                                                                    No. 339618
                                                                     Court of Claims
STATE OF MICHIGAN, DEPARTMENT OF                                     LC No. 17-000091-MM
CORRECTIONS, and EDWARD BARBER

               Defendants-Appellees.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Plaintiff appeals by right the Court of Claims order granting defendant’s motion for
summary disposition under MCR 2.116(C)(7). We affirm the dismissal of plaintiff’s state law
claims. However, we vacate the dismissal of plaintiff’s federal constitutional claims and remand
to the trial court to reconsider the motion to dismiss in light of Felder v Casey, 487 US 131; 108
S Ct 2302; 101 L Ed 2d 123 (1988).

        A trial court sentenced plaintiff (as a criminal defendant) to a term of probation in August
2007. In December 2007, plaintiff was arrested in Indiana and sentenced to a number of years in
that state’s prison system. Plaintiff’s Indiana crimes violated the terms of his Michigan
probation. In January 2008, on the basis of a motion and affidavit submitted by defendant
Edward Barber, an arrest warrant was issued for plaintiff in Michigan based on his probation
violation. In August 2011, when plaintiff was released from prison in Indiana, defendants
apparently immediately arrested him for his Michigan probation violation. In September 2011,
plaintiff was convicted and sentenced to up to five years’ imprisonment in Michigan. Plaintiff
appealed his sentence, and this Court eventually remanded the case to the trial court “for an
evidentiary hearing to determine ‘whether the probation authorities acted with reasonable
dispatch under all the circumstances.’ ” People v Cowan, unpublished per curiam opinion of the
Court of Appeals, issued August 18, 2015 (Docket No. 319132), p 3, quoting People v Diamond,
59 Mich App 581, 588; 229 NW2d 857 (1975). The trial court subsequently vacated plaintiff’s
sentence on May 23, 2016, and plaintiff was released from prison on May 25, 2016.

        On September 15, 2016, plaintiff filed a Notice of Intention to File Claim (notice of
intent) with the Michigan Court of Claims. On April 19, 2017, plaintiff filed a complaint against
defendants in the Court of Claims, alleging “violations of the Fourth, Fourteenth, and Eighth



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Amendments to the United States Constitution, for violations of Sections 16 and 17 of Article 1
of the Michigan State Constitution, and for the torts of false arrest, false imprisonment, malicious
prosecution, abuse of process, negligence, and intentional and negligent infliction of emotional
distress . . . .”

         In June 2017, defendants filed a motion for summary disposition under MCR
2.116(C)(7), claiming governmental immunity because plaintiff failed to timely file his notice of
intent as required by the Court of Claims Act, MCL 600.6401 et seq. Defendants argued that
plaintiff was required to file a notice of intent “within 6 months following the happening of the
events giving rise to the cause of action” pursuant to MCL 600.6431(3), and the events giving
rise to plaintiff’s causes of action happened in either August 2011 when plaintiff was arrested for
his probation violation, or September 2011 when plaintiff was convicted and sentenced for his
probation violation. Defendants concluded that, because plaintiff did not file his notice of intent
until September 2016, plaintiff missed the six-month filing deadline by over four years, and,
therefore, his complaint must be dismissed.

        In response, plaintiff argued the happening of the event giving rise to his cause of action
was his release from prison on May 25, 2016. Plaintiff contended that “[a]ll elements for a tort
or constitutional tort must be complete before the” time for filing notice begins to run, and that
the harm to plaintiff was not complete until he was released from prison. Plaintiff concluded
that, therefore, “Defendants do not select the proper date at which the” time for filing notice
“began to run in this action,” and that plaintiff’s notice of intent was timely when properly
measured from his prison release date.

      The Court of Claims agreed with defendants that plaintiff’s notice of intent was untimely.
The Court of Claims reasoned as follows:

       Plaintiff’s allegations focus upon the State’s alleged delay in pursuing the
       probation violation against him, and the probation violation warrant and
       conviction occurred in 2011. At that point in time, the alleged delay by the State
       in pursuing probation violation charges had occurred and plaintiff had been
       incarcerated. In other words, the event giving rise to these claims occurred no
       later than 2011 because by that time the delay in pursuing the probation violation
       had occurred and his incarceration began. Thus, the events giving rise to
       plaintiff’s causes of action all occurred during calendar year 2011.

The Court of Claims accordingly dismissed plaintiff’s complaint for failing to comply with the
notice provision in MCL 600.6431(3).

        On appeal, plaintiff argues—as he did in the Court of Claims—that the events giving rise
to his claims were not complete until he was released from prison in May 2016, and, therefore,
his notice of intent was timely filed within the six-month statutory period. We disagree.

        We review a lower court’s decision on a motion for summary disposition de novo. Major
v Vill of Newberry, 316 Mich App 527, 534; 892NW2d 402 (2016). “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, 331-332, 859 NW2d 246



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(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
600.6431. Id. Absent compliance with this notice provision, a party may not maintain a claim
against the state. Id. at 742. The notice provision provides as follows:

       (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.

                                              * * *

       (2) 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 600.6431(1) and (3) (emphasis added).]


        These notice requirements apply to claims for intentional tort and state constitutional
violations, see Rusha v Dep’t of Corr, 307 Mich App 300, 311-312; 859 NW2d 735 (2014) .1
The Michigan Supreme Court has explained that “subsection (3) . . . does not [] displace the
specific requirements of subsection (1) other than the timing requirement for personal injury or
property damage cases.” McCahan, 492 Mich at 742 (emphasis omitted). Therefore, the
relevant question is whether plaintiff’s claims accrued within six months of his notice of intent.

        We agree with the Court of Claims that plaintiff’s claims accrued when he was
imprisoned in 2011. All of plaintiff’s claims are based upon defendants’ delay in pursuing
plaintiff’s probation violation, and defendants pursued those violations—and subsequently
incarcerated plaintiff for his violations—in 2011. These were the only actions taken by
defendants that plaintiff contends gave rise to liability, and these events occurred no later than
September 2011. Therefore, because plaintiff’s claims all stem from his imprisonment, the event

1
  In Rusha, plaintiff’s sole claim was that defendant violated the “cruel or unusual” provision of
the Michigan Constitution. Const 1963, art 1, section 16.



                                                -3-
giving rise to his claims is, logically, when he was placed in prison. And because this occurred
no later than September 2011, plaintiff’s claims accrued no later than September 2011, and
plaintiff was required to file his notice of intent within six months of that date. Plaintiff did not
file his notice of intent until September 2016. Therefore, plaintiff’s notice was untimely in
violation of MCL 600.6431, and the Court of Claims properly dismissed plaintiff’s state causes
of action. While this result may be harsh, requiring a plaintiff to provide notice is “a reasonable”
and “minimal” burden that a plaintiff must meet “to advise the state of potential claims,” Rusha,
307 Mich App at 313, and plaintiff failed to meet that burden in this case. Filing a notice of
intent did not require plaintiff to file his substantive claim, which he could have waited until after
his release from prison to do.

        Plaintiff contends on appeal that the “event” was his incarceration, and that the “event
cannot be said to have ‘happened’ until it is complete.” In support of this contention, plaintiff
points to caselaw providing that a cause of action does not accrue until all of the elements of the
claim exist, and he argues that “the element of harm” did not exist until it was completed on his
release date.

       Plaintiff’s argument appears to be a reiteration of the continuing-wrongs doctrine. “The
continuing-wrongful-acts doctrine states that “[w]here a defendant’s wrongful acts are of a
continuing nature, the period of limitation will not run until the wrong is abated; therefore, a
separate cause of action can accrue each day that defendant’s tortious conduct continues.”
Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 81; 592 NW2d 112
(1999), quoting Horvath v Delida, 213 Mich App 620, 625; 540 NW2d 760 (1995).
Accordingly, we reject plaintiff’s argument because the continuing-wrongs doctrine has been
“abrogated . . . in the jurisprudence of this state.” Marilyn Froling Revocable Living Trust v
Bloomfield Hills Country Club, 283 Mich App 264, 288; 769 NW2d 234 (2009); see also Garg v
Macomb Co Community Mental Health Servs, 472 Mich 263, 282; 696 NW2d 646 (2005).

        The damages that plaintiff suffered were based on his loss of liberty as a result of his
imprisonment. Therefore, when plaintiff was first deprived of his liberty—meaning when he
was first imprisoned—he suffered damages. At that time, all of the elements of his claim
existed, and, consequently, his claim accrued. Although the extent of plaintiff’s damages was
not apparent until he was released from prison, the fact that the alleged wrong was of a
continuing nature does not delay the accrual of plaintiff’s cause of action. To hold otherwise
would be to accept the abrogated continuing-wrongs doctrine, which we cannot do.
Accordingly, plaintiff’s claims accrued in 2011, and his notice of intent was untimely.

        Plaintiff’s federal constitutional claims 2 also accrued upon his erroneous imprisonment.
As to these claims, however, there is a question, not raised by the parties, whether a state’s pre-
suit notice provisions apply and whether non-compliance is grounds for dismissal of such claims.
 “Ordinarily, we do not address issues not raised below or on appeal, or issues that were not
decided by the trial court.” Tingley v. Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004).
“However, this Court possesses the discretion to review a legal issue not raised by the parties.


2
    Brought under 42 USC § 1983.



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See Mack v. Detroit, 467 Mich 186, 206-209; 649 NW2d 47 (2002) (stating that “[t]he
jurisprudence of Michigan cannot be, and is not, dependent upon whether individual parties
accurately identify and elucidate controlling legal questions”).”

        Whether a state’s pre-suit notice requirements apply to a federal constitutional claim is a
purely legal question and was considered by the U.S. Supreme Court in Felder v Casey, 487 US
131; 108 S Ct 2302; 101 L Ed 2d 123 (1988). In Felder, the Supreme Court held that pre-suit
notice provisions of state law do not apply to federal constitutional claims, stating, “enforcement
of the [state] notice-of-claim statute in § 1983 actions brought in state court so interferes with
and frustrates the substantive right Congress created that, under the Supremacy Clause, it must
yield to the federal interest.” Id. at 151. The Court concluded “because . . . these requirements
are pre-empted as inconsistent with federal law, we reverse. Id. at 134.

        We affirm the dismissal of plaintiff’s state claims. We vacate the dismissal of plaintiff’s
federal constitutional claims and remand to the trial court to reconsider the motion to dismiss in
light of Felder. We do not retain jurisdiction.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael J. Kelly




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