"Merger"; Equitable exception to the merger doctrine; Byerlein v. Shipp; Whether a third party's rights are affected by the intention to keep the mortgage alive; Union Bank & Trust Co., NA v. Farmwald Dev. Corp.; Titus v. Cavalier; Clark v. Federal Land Bank of St. Paul; Tower v. Divine; U.S. Leather, Inc. v. Mitchell Mfg. Group, Inc. (6th Cir.); Limitations periods on suits related to condo. projects; MCL 559.276(1); "Developer" defined; MCL 559.106(2); "Arising out of"; People v. Johnson; "Relation-back" doctrine; MCR 2.118(D); Yudashkin v. Linzmeyer; Tice Estate v. Tice; Miller v. Chapman Contracting; "Fraudulent concealment"; MCL 600.5855; Doe v. Roman Catholic Archbishop of Archdiocese of Detroit; Lumber Vill., Inc. v. Siegler; Terlecki v. Stewart

The court held that the trial court abused its discretion in ordering that defendant-Warren could foreclose on the condo units at issue, and erred in finding that some of plaintiff's claims were time-barred (although dismissal was still proper on other grounds), but did not err in finding that plaintiff's remaining claims were time-barred. Plaintiff sued defendants alleging multiple claims related to unpaid condo assessments. Defendant/intervening plaintiff-Reserve filed an intervening complaint seeking a declaratory judgment and other relief. The court agreed with plaintiff that the equitable exception to the merger doctrine did not apply and the trial court erred in concluding that the mortgage and fee title did not merge at the time of the conveyance from defendant-Winnick to Warren. It found that the trial court "erred in finding that plaintiff was not a third party affected by the nonmerger because there were no assessments due at the time of the conveyance containing the nonmerger clause," and erred in finding "that plaintiff was made no worse" by the nonmerger. "[D]espite the express intent to keep the mortgage alive, there was a merger of the mortgage and the fee title because a finding of nonmerger would affect the rights of plaintiff. Because the fee and the mortgage merged, Warren could not foreclose on the mortgage." The court next found that the trial court properly dismissed counts IV through XXVII based on the statute of limitations, but erred in finding that counts XXVIII through XXX were time-barred, although dismissal of those counts was proper on other grounds. It held that the causes of action set forth in counts IV through IX relating to the delivery and development of the complex were required to be brought by 1/27/12, and that there was no fraudulent concealment because the physical defects were not concealed. Plaintiff's complaints containing counts IV through XXX were not filed until 7/16/12 and 9/14/12. "The amended complaints do not relate back to the original complaint. Accordingly, these claims are time-barred." As for the causes of action in counts XII through XXVII (as well as those in counts IV through IX involving the fraudulent scheme), the court found that these accrued in either 12/08 or 3/09, and plaintiff had until either 3/3/11 or 1/27/12 to file suit, but its complaints containing counts IV through XXX were not filed until 7/16/12 and 9/14/12. "There was no fraudulent concealment and plaintiff's amended complaints do not relate back to the original complaint. Accordingly, these claims are time-barred." Finally, it held that the causes of action in counts XXVIII through XXX were not time-barred, but that the remedies plaintiff sought were not available and counts XXVIII and XXIX were moot. "The trial court properly dismissed these counts, albeit for the wrong reason." Affirmed as to the portion of the trial court's order dismissing counts IV through XXX, reversed as to the portion concluding that Warren could foreclose on the mortgage because there was no merger, and remanded for proceedings consistent with the court's opinion.