JESSICA L JOHNSON V VIRGIE A KUDLA
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STATE OF MICHIGAN
COURT OF APPEALS
JESSICA L. JOHNSON,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellant,
V
No. 223055
Macomb Circuit Court
LC No. 98-004425-NO
VIRGIE A. KUDLA,
Defendant-Appellee.
Before: Bandstra, C.J., and Doctoroff and White, JJ.
MEMORANDUM.
Plaintiff appeals as of right, challenging the circuit court’s orders granting defendant’s
motion for summary disposition, setting aside orders extending the summons, and denying
plaintiff’s motion for reconsideration. We affirm in part and reverse in part.
The circuit court properly granted defendant’s motion for summary disposition and
dismissed plaintiff’s complaint, without prejudice, because the second summons was issued after
the original summons expired. A second summons may only be issued within the ninety-one day
life of the original summons. MCR 2.102(D); Durfy v Kellogg, 193 Mich App 141, 144; 483
NW2d 664 (1992). Upon expiration of the original summons, the action was deemed dismissed,
without prejudice, with respect to defendant, who had not yet been served with process. MCR
2.102(E)(1). Although plaintiff’s request for a second summons was made before the original
summons expired, under MCR 2.102(D) as construed in Durfy, supra, it was necessary that the
second summons be issued before the original summons expired. Because a second summons
was not issued before the first summons expired, the circuit court properly granted summary
disposition pursuant to MCR 2.116(C)(2), and dismissed the action without prejudice.
Plaintiff also contends that the circuit court erred in denying her motion for
reconsideration and then dismissing the action with prejudice on the basis of the statute of
limitations.
Because the circuit court did not err in granting the motion, it did not err in denying
reconsideration.1 We agree, however, that the circuit court’s ruling concerning the statute of
1
We reject the argument that the circuit court did not have the authority to set aside the orders of
(continued…)
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limitations and resulting dismissal with prejudice were improper. The statute of limitations issue
had not been briefed by the parties and was not properly before the court. Accordingly, we
reverse that portion of the court’s order dismissing plaintiff’s complaint with prejudice. We
express no opinion on the statute of limitations issue.
Affirmed in part and reversed in part. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Martin M. Doctoroff
/s/ Helene N. White
(…continued)
the other circuit court judges who entered the orders for issuance of the second summons
retroactively. These orders were expressly entered by those judges “in the absence of Judge
Schwartz,” i.e., standing in for Judge Schwartz in his stead.
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