JOEL F LABEAU V JEANNE K HICKS MD
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STATE OF MICHIGAN
COURT OF APPEALS
JOEL F. LABEAU,
UNPUBLISHED
August 8, 2000
Plaintiff-Appellant,
v
JEANNE K. HICKS, M.D., ADVANCED
RADIOLOGY CONSULTANTS, P.C., MARK W.
SCHARR, M.D., FLINT EMERGENCY
PHYSICIANS, P.C., M. FLORES, M.D.,
MCLAREN REGIONAL MEDICAL CENTER,
d/b/a MCLAREN OCCUPATIONAL AND
URGENT CARE CENTER, G. L. LARSON, D.O.,
R. D. HELFERTY, M.D., G. H. ZIELINSKI, M.D.,
and BARINA ZADO, M.D.,
No. 207264
Genesee Circuit Court
LC Nos. 95-039920-NH
97-054549-NH
Defendants-Appellees.
Before: Gribbs, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right the trial court’s two separate
grants of summary disposition that dismissed without prejudice all the claims in lower court nos. 95
039920-NH and 97-054549-NH. 1 We affirm.
Plaintiff argues on appeal that the trial court should have granted his motion for relief from
judgment in the earlier case because he was not aware that the hearing on the motion for summary
disposition was going ahead as scheduled and did not receive proper notice of entry of the judgment
granting summary disposition in defendants’ favor. Moreover, plaintiff contends that the failure to
apprise him of the December 12, 1996 entry of the judgment of summary disposition resulted in his
1
The trial court dismissed defendant Barina Zado, who was a defendant in lower court no. 95-039920NH, with prejudice pursuant to the parties’ stipulation.
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inability to re-file his negligence claims against defendants Hicks, Advanced Radiology, Schaar, and
Flint Emergency because the statute of limitations expired two days after the trial court entered the
judgment of summary disposition. Yet, plaintiff did not receive notice that the trial court had entered
judgment until December 17, 1996, approximately five days after the judgment was entered.2
We review the trial court’s refusal to grant plaintiff’s motion for relief from judgment for an
abuse of discretion. Redding v Redding, 214 Mich App 639, 643; 543 NW2d 75 (1995). An abuse
of discretion will be found only when the result is so palpably and grossly violative of fact and logic that
it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Dacon v
Transue, 441 Mich 315, 329; 490 NW2d 369 (1992).
MCR 2.612(C) provides, as pertinent:
(1) On motion and on just terms, the court may relieve a party . . . from a final
judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party.
(d) The judgment is void.
* * *
(f) Any other reason justifying relief from the operation of the judgment.
(2) The motion must be made within a reasonable time, and, for the grounds
stated in subrules (C)(1)(a), (b), and (c), within one year after the judgment, order, or
proceeding was entered or taken. A motion under this subrule does not affect the
finality of a judgment or suspend its operation.
2
A plaintiff must commence a malpractice action within two years of when the claim accrued. MCL
600.5805(1), (4); MSA 27A.5805(1), (4), Solowy v Oakwood Hospital Corp, 454 Mich 214, 219;
561 NW2d 843 (1997). It is plaintiff’s theory that he filed lower court no. 95-039920-NH two days
prior to the expiration of the statute of limitations applicable to his malpractice claims against defendants
and that he tolled the statute of limitations by filing this lawsuit. Thus, plaintiff believes he had two days
from December 12, 1996, when the trial court entered the judgment for summary disposition, in which
to re-file his claims against defendants Hicks, Advanced Radiology, Schaar, and Flint Emergency.
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Motions for relief from judgment must be brought within a reasonable time, Detroit Free Press,
Inc v Dep’t of State Police, 233 Mich App 554, 556; 593 NW2d 200 (1999), and, if the motion for
relief is brought under subrules (C)(1)(a), (b), or (c), within one year after the judgment, MCR
2.612(C)(2). In his brief, plaintiff seems to imply that his motion for relief from judgment was timely per
se because he filed it within one year of the entry of the allegedly erroneous judgment. However, the
language of MCR 2.612(C)(2) states only that the reasonable time to file a motion for relief from
judgment pursuant to subrules (1)(a), (b), or (c) must not exceed one year, not that one year is timely.
See 3 Dean & Longhofer, Michigan Court Rules Practice, p 474. Here, in denying plaintiff’s motion
and citing plaintiff’s inattention to the case, the trial court implicitly determined that the seven month
delay in filing the motion for relief from judgment and the approximately two additional months before
the motion was heard constituted an unreasonable amount of time. Under these circumstances, we find
no abuse of discretion.
Nor is plaintiff’s argument that he was entitled to relief from judgment because the trial court
failed to comply with MCR 2.602(B) when entering the judgment of summary disposition compelling.
There is little argument that defendants and the trial court did not comply exactly with MCR 2.602(B),
as they admit such.3 However, plaintiff’s argument that he was prejudiced by the failure to comply with
MCR 2.602(B)(1) is unconvincing. A court speaks through its written orders. People v Vincent, 455
Mich 110, 123; 565 NW2d 629 (1997). MCR 2.602(B) sets forth various procedures to ensure that
a court’s written orders comport with its actual decisions. See 3 Dean & Longhofer, Michigan Court
Rules Practice, pp 299-302. Significantly, plaintiff does not argue that the judgment of summary
disposition, as written, varies from the trial court’s decision as reflected in the record of the December
9, 1996, motion hearing. Indeed, the judgment grants the exact relief contemplated at that hearing.
Moreover, the fact that the trial court did not comply exactly with MCR 2.602(B)(1) when entering the
judgment does not, contrary to plaintiff’s argument, automatically make the judgment void:
A judgment is “void” only if it is beyond the power of the court to render. In
general, that will be the case only if the court lacked jurisdiction over the person or over
the subject matter of the action.
Care should also be taken not to confuse “void” judgments with those that are
merely “voidable.” Certain procedural irregularities, not amounting to lack of
jurisdiction over the person or subject matter, are sometimes characterized as making a
judgment “voidable.” This means that such judgments may be set aside upon a timely
application in the same proceedings as a matter of judicial discretion. [3 Dean &
Longhofer, Michigan Court Rules Practice, p 479 (footnotes omitted).]
3
Defendants submitted the judgment to the trial court after it granted its motion for summary disposition
at the December 9, 1996, hearing. The trial court signed the judgment some three days after the
hearing, an act that does not comport with a literal reading of MCR 2.602(B)(1), which allows the trial
court to sign a judgment or order “at the time it grants the relief provided by the judgment or order.”
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Plaintiff has not attempted to show that the trial court’s failure to comply with MCR 2.602(B) resulted in
the judgment being void, rather than merely voidable. Instead, plaintiff argues that the failure to follow
MCR 2.602(B) deprived him of notice that the trial court had decided to grant defendants’ motion.
However, plaintiff had notice that the hearing was scheduled for December 9, 1996. As he admitted,
he mistakenly assumed that the Hicks defendants had agreed to further adjournment of the hearing on
their summary disposition motion. Plaintiff cannot complain that the trial court’s consideration of
defendants’ motion for summary disposition unfairly surprised him. Additionally, consonant with MCR
2.602(D)(1), it appears that plaintiff did receive proper service of the judgment of summary disposition
within seven days of its entry. Plaintiff’s own mistake of not appearing at the hearing is the initial reason
why he did not immediately discover the trial court’s decision and take steps to re-file his claims
against defendants within the two days allegedly left under the statute of limitations. Plaintiff cannot
argue his own error as a basis for appeal. 4 See Bloemsma v Auto Club Ins Ass’n (After Remand),
190 Mich App 686, 691; 476 NW2d 487 (1991).
To the extent that plaintiff blames the trial court and defendants Hicks, Advanced Radiology,
Schaar, and Flint Emergency for the expiration of the two-year statute of limitations, his argument is
simply misplaced. Plaintiff incorrectly assumes that his September 22, 1995, filing of lower court no.
95-039920-NH tolled the two-year statute of limitations applicable to his medical malpractice claims.
“Generally, a civil action is commenced and the period of limitation is tolled when a complaint is filed.”
Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000); see MCR 2.101(B); MCL
600.5856; MSA 27A.5856. However, plaintiff’s failure to file an affidavit of merit along with his
complaint, pursuant to MCL 600.2912d(1); MSA 27A.2912(4)(1), not only was insufficient to
commence his lawsuit against defendants, it did not toll the limitations period. Scarsella, supra at 549
550. Moreover, his eventual filing of an affidavit of merit more than one year after commencing lower
court no. 95-039920-NH does not relate back to the filing of the original complaint. Id. at 550.
Therefore, the limitations period based on plaintiff’s emergency room treatment expired on or about
September 24, 1995, long before the trial court’s December 12, 1996, judgment of summary
disposition in favor of defendants Hicks, Advanced Radiology, Schaar, and Flint Emergency. Thus, we
affirm the trial court’s refusal to grant plaintiff’s motion for relief from judgment.
Further, as stated in his statement of questions involved, plaintiff questions whether “dismissal of
a medical malpractice suit [is] an inappropriate sanction for plaintiff’s failure to comply with the affidavit,
medical release and notice provisions of MCL 600.2912b; MSA 27A.2912(2) where suit was started
to avoid potential statute of limitations issues, but was not served before the notice period expired.”
This Court has already determined that dismissal is an appropriate sanction. In Neal v Oakwood
Hospital Corp, 226 Mich App 701, 715; 575 NW2d 68 (1997), this Court held that “dismissal
without prejudice was the appropriate remedy for plaintiff’s noncompliance with § 2912b(1) [the notice
provision].” Further, the Neal Court explained that “allowing plaintiff to disregard §2912b(1) and
prematurely commence his action simply in order to avoid the 1995 legislation and obtain the alleged
4
We can, however, imagine a scenario where failing to follow the court rule could, indeed, prejudice a
party. And certainly courts have a duty and responsibility, as do litigants, to follow the court rules.
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benefit of supposedly more favorable law to the formal litigation of his case would directly undercut the
statutory purpose of encouraging settlement before formal litigation is commenced.” Id. at 716.5
To the extent that plaintiff further argues that the 182-day notice provision of §2912b is
unconstitutional because it violates Const 1963, art IV, § 27, by making other pieces of legislation,
particularly statutes that place caps on the damages available to plaintiffs in medical malpractice actions
regardless of their fault, MCL 600.1483; MSA 27A.1483 and MCL 600.6304; MSA 27A.6304,
effective before ninety days after the end of the session in which the statutes were passed, we decline to
address his argument. Plaintiff failed to raise this issue before the trial court, and thus it is not properly
preserved for appellate review. Ohio Farmers Ins Co v Shamie, 235 Mich App 417, 426-427; 597
NW2d 553 (1999), vacated in part on other grounds 462 Mich 852 (2000). However, this Court may
consider constitutional issues for the first time on appeal if no questions of fact exist and the interests of
justice and judicial economy so dictate. Great Lakes Div of Nat’l Steel Corp v Ecorse, 227 Mich
App 379, 426; 576 NW2d 667 (1998). We refuse to address this issue because plaintiff’s claim is not
ripe for our consideration. Plaintiff has failed to demonstrate that he actually was adversely affected by
the premature application of the damages caps to his malpractice claims in violation of 1963 Const, art
IV, §27. See Straus v Governor, 459 Mich 526, 545 n 14; 592 NW2d 53 (1999) (“Where a
constitutional question is presented anticipatorily, the Court is required by the limits on its authority to
decline to rule”); see also Lewis v Krogol, 229 Mich App 483, 490-491; 582 NW2d 524 (1998).
We will not deal with constitutional questions hypothetically or in the abstract. Lewis, supra at 490.
Plaintiff also makes arguments at length in three separate issues concerning the constitutionality
of the notice and 182-day waiting requirements of MCL 600.2912b; MSA 27A.2912(2).6 Plaintiff
claims that § 2912b violates the equal protection clause, violates the separation of powers doctrine, and
denies medical malpractice plaintiffs due process of law. For reasons previously stated by this Court,
we find plaintiff’s arguments without merit.
In Neal, supra, a panel of this Court fully addressed these issues. The Neal Court found that
the notice and waiting provision does not violate the state and federal guarantees that no person will be
denied equal protection of the law, US Const, Am XIV, §1; Const 1963, art 1, § 2; St Louis v
Michigan Underground Storage Tank Financial Assurance Policy Bd, 215 Mich App 69, 72-73;
544 NW2d 705 (1996). Neal, supra at 716-720. Nor does the provision violate due process by
5
To the extent that plaintiff suggests that his 1997 cause of action, which was filed after the expiration of
the 182-day notice period expired, was improperly dismissed, his argument is without merit. Plaintiff
failed to file an affidavit of merit with the complaint, and depending on the circumstances, dismissal
without prejudice is an appropriate sanction for failure to file an affidavit of merit. Dorris v Detroit
Osteopathic Hospital Corp, 460 Mich 26, 47-48; 594 NW2d 455 (1999). Moreover, plaintiff’s suit
would have been barred by the statute of limitations. See discussion in text, supra.
6
Contrary to defendants’ interpretation, our reading of plaintiff’s appellate brief clearly indicates that
plaintiff’s final three issues do not, as defendants have argued, concern the constitutionality of the
affidavit of merit requirement set forth in MCL 600.2912d; MSA 27A.2912(4).
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vitiating vested property rights in causes of action, or by being unreasonable, arbitrary or capricious.
Neal, supra at 716-721. Finally, this Court in Neal held that the notice and waiting provision does not
constitute an unconstitutional delegation of legislative authority to a private party,7 nor does it contravene
the Supreme Court’s superior rule-making power in matters of practice and procedure8 because it does
not change the manner in which or how a civil action is commenced in medical malpractice cases, see
MCR 2.101(B), but merely imposes a temporal requirement with which a plaintiff must comply before
commencing a civil action. Neal, supra at 721-723.9 Therefore, in light of Neal, we reject plaintiff’s
arguments on appeal concerning the constitutionality of the notice and waiting provision of § 2912b.
Affirmed.
/s/ Roman S. Gribbs
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
7
The Legislature may not delegate its law-making powers to private individuals or entities. Osius v St
Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956); Neal, supra at 721.
8
See Const 1963, art 6, § 5; McDougall v Schanz, 461 Mich 15, 26; 597 NW2d 148 (1999).
9
Plaintiff hypothesizes that other provisions of MCL 600.2912b; MSA 27A.2912(2) could conflict
with MCR 2.118, which governs the amendment of pleadings. However, the trial court did not deny
plaintiff the opportunity to amend his pleadings to add other parties or otherwise amend his complaint.
Indeed, plaintiff never sought to amend his complaint. We do not address the issue of the statute’s
potential unconstitutional conflict with MCR 2.118 in light of the general presumption that constitutional
issues that are not necessary to resolve a case will not be reached. Great Lakes Div, supra at 432.
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