Claim for breach of a contract to remediate environmentally contaminated real estate; Statute of limitations; MCL 600.5807(9); Accrual; MCL 600.5827; Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v. Bakshi; Repudiation; Stoddard v. Manufacturers Nat’l Bank of Grand Rapids; Principle that a plaintiff need not know of the invasion of a legal right in order for a claim to accrue; Dewey v. Tabor; Michigan Department of Environmental Quality (MDEQ)

Concluding that the undisputed evidence established that defendant-DH Holdings’ alleged breach occurred in 1999, the court held that the statute of limitations expired before plaintiff-Hutchinson filed its complaint in 2019 alleging breach of contract. Thus, it affirmed summary disposition for DH Holdings. Plaintiff alleged that DH Holdings failed “to remediate environmentally contaminated” property it sold to plaintiff’s predecessor in the 1990s. Pursuant to the parties’ agreement, DH Holdings began “remediation efforts on the property after” the closing in 1996. In 8/98 and 5/99, “the parties communicated about the remediation plan, and DH Holdings indicated that, once it submitted the draft remediation action plan to the MDEQ, it would provide Hutchinson with ‘all written communications’ regarding remediation on the property. It is unclear what (if any) communication” subsequently occurred between the parties. It was also unclear what remediation activities occurred. In “2018, Hutchinson began demanding that DH Holdings achieve closure under the agreement. Importantly, however,” an affidavit of DH Holdings’ vice president supported that its involvement with the property ended in 11/99. Thus, if it “was not engaging in remediation activities or attempting to achieve closure, DH Holdings stopped complying with the relevant terms of the agreement sometime around” 11/30/99. But Hutchinson asserted that since the agreement did not contain “a specific deadline for performance, ‘DH Holdings did not breach’” it until it repudiated it in 12/18. But the court determined that “DH Holdings did not ‘unequivocally declare[] the intent not to perform’ for the first time in” 12/18. Rather, at that time it informed Hutchinson it “believed that it had ‘fully discharged its responsibilities under the Purchase Agreement and that th[e] matter was closed by mutual agreement of the parties in or around 1999.’ Thus, Hutchinson’s argument that the breach occurred in” 12/18 lacked factual support. While it contended it did not know until then “that DH Holdings did not intend to honor the agreement, ‘[a] plaintiff need not know of the invasion of a legal right in order for [a] claim to accrue.’” When the complaint was filed, over 23 years had elapsed since the closing “and DH Holdings had not engaged in any activities relating to the property in over 19 years.”