ABDUL AL-SHIMMARI V SETTI S RENGACHARY MD
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 2, 2007
ABDUL AL-SHIMMARI,
Plaintiff-Appellee/
Cross-Appellant,
v
No. 130078
THE DETROIT MEDICAL CENTER,
HARPER-HUTZEL HOSPITAL,
UNIVERSITY NEUROSURGICAL
ASSOCIATES, P.C., and SETTI
RENGACHARY, M.D.,
Defendants-Appellants/
Cross-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We heard oral argument on whether to grant the application and crossapplication for leave to appeal in order to consider whether MCR 2.116(I)(3)
requires a trial court to conduct a jury trial to determine whether service of process
was sufficient, whether a general appearance by a defendant waives an objection
to the sufficiency of service of process under MCR 2.116(C)(3), and whether a
plaintiff may proceed with a vicarious liability claim against various medical
entities after the claim against the allegedly negligent doctor has been dismissed.
Because we conclude that MCR 2.116(I)(3) does not require a jury trial to
determine whether service of process was sufficient, we reverse the part of the
Court of Appeals judgment that required such a trial. Because MCR 2.116(D)(1)
states that a party waives an objection to service of process under MCR
2.116(C)(3) unless the objection is raised in a party’s first motion or responsive
pleading, we further conclude that a general appearance does not waive objections
to service of process under MCR 2.116(C)(3) if the party properly raises such
objections under MCR 2.116(D)(1). Accordingly, we reverse the part of the Court
of Appeals judgment that held otherwise. Finally, because the dismissal of the
claim against the doctor based on the expiration of the period of limitations
operated as an adjudication on the merits under MCR 2.504(B)(3), we reverse the
part of the Court of Appeals judgment that allowed the suit to proceed on the basis
of vicarious liability against defendant medical entities.
I. FACTS AND PROCEDURE
Plaintiff Abdul Al-Shimmari was treated by defendant Dr. Setti Rengachary
for back pain.
After examining the plaintiff, Rengachary recommended that
plaintiff undergo back surgery, and he performed the surgery on September 17,
2001. After the surgery, plaintiff continued to feel pain, and in July 2002 a
2
different doctor concluded that plaintiff had suffered nerve injury as a result of the
surgery.
Because the surgery took place on September 17, 2001, the two-year period
of limitations expired on September 17, 2003. MCL 600.5805(6).1 On September
16, 2003, plaintiff served a notice of intent to bring this action on defendants
Rengachary, Harper-Hutzel Hospital, Detroit Medical Center, and University
Neurosurgical Associates, P.C.
The notice of intent tolled the statute of
limitations for 182 days, until March 16, 2004. MCL 600.5856(d). Plaintiff then
had until March 17, 2004, to file a complaint properly. At the time this complaint
was filed, MCL 600.5856 stated:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the
summons and complaint are served on the defendant.[2]
Therefore, plaintiff had to serve the defendants by March 17, 2004. Plaintiff filed
the complaint charging medical malpractice on March 10, 2004, alleging
negligence, battery, and lack of informed consent against all defendants,3 and
1
“Except as otherwise provided in this chapter, the period of limitations is
2 years for an action charging malpractice.”
2
Effective April 22, 2004, MCL 600.5856(a) was revised by 2004 PA 87,
and now provides that the statute of limitations is tolled “[a]t the time the
complaint is filed, if a copy of the summons and complaint are served on the
defendant within the time set forth in the supreme court rules.”
3
Plaintiff did not allege that University Neurological Associates was
(continued…)
3
vicarious liability against Harper-Hutzel Hospital, Detroit Medical Center, and
University Neurosurgical Associates.
On April 6, 2004, defendants’ counsel
signed a stipulation for the admission of plaintiff’s medical records.
This
stipulation was made on behalf of all defendants, including Rengachary, in
exchange for an extension to file responsive pleadings.
The parties dispute when Rengachary was served. On April 16, 2004,
Rengachary filed two separate motions for summary disposition. In the first
motion, Rengachary sought dismissal under MCR 2.116(C)(2), (3), and (8),
claiming that he had not been properly served pursuant to the applicable court
rules before the expiration of the period of limitations. In the second motion,
Rengachary sought summary disposition under MCR 2.116(C)(7) and (8), alleging
that he had not been served within the statute of limitations period. Rengachary
claimed that he was not served until March 18, 2004, after the statute of
limitations period had run.
Plaintiff disputed Rengachary’s contentions and
submitted a proof of service stating that Rengachary had been served on March
11, 2004, within the statute of limitations period.
To determine when service of process occurred, the trial court ordered that
an evidentiary hearing be held. At the hearing, plaintiff’s process server testified
that on March 11 she found Rengachary, who was wearing a white coat, at his
(continued…)
negligent.
4
place of work, inquired if he was Rengachary, and served him when he responded,
“Yes.” However, the process server did not obtain Rengachary’s signature, and
did not sign a proof of service until April 9, 2004. In response, Rengachary
denied that he had been served on March 11, testified that he did not dress in a
white coat at work, and stated he had not been served until March 18. On the
basis of this testimony, the trial court concluded that Rengachary had not been
served until March 18 and granted him summary disposition with prejudice under
MCR 2.116(C)(7).
The remaining defendants then moved for summary
disposition of the vicarious liability claims, arguing that because Rengachary had
been dismissed, the remaining defendants could not be held vicariously liable for
his actions. The remaining defendants also filed a supplemental brief, alleging
that the claims of vicarious liability should also be dismissed under MCR
2.116(C)(10) because plaintiff had not shown that Rengachary was an agent of the
hospital.
The trial court agreed that the dismissal of the claims against
Rengachary extinguished the claims against the remaining defendants and granted
summary disposition for the remaining defendants under MCR 2.116(C)(7).
Plaintiff appealed by leave granted the order granting summary disposition
in favor of Rengachary and as of right from the order granting summary
disposition for the remaining defendants, and the appeals were consolidated. The
Court of Appeals reversed the orders of the trial court and remanded for further
proceedings. Unpublished opinion per curiam, issued November 1, 2005 (Docket
5
Nos. 259363 and 262655). The Court of Appeals held that plaintiff was entitled to
a jury trial on the disputed question of when the defendant doctor was served, and
concluded that the claims against the other defendants should not have been
dismissed because the grant of summary disposition to Rengachary had not been
on the merits of the claims. The Court of Appeals also held that defendants’
attorneys’ actions with regard to the stipulation were not sufficient to constitute a
general appearance and also held that a party may waive the right to object to
service by entering a general appearance and contesting the suit on the merits.
Defendants sought leave to appeal and plaintiff sought leave to appeal as crossappellant.4 This Court directed the clerk to schedule oral argument on whether to
grant the applications or take other peremptory action. 475 Mich 861 (2006).
II. STANDARD OF REVIEW
This Court reviews a trial court’s grant or denial of summary disposition de
novo. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 60; 718 NW2d 784 (2006).
The interpretation of court rules is a question of law, which is reviewed de novo.
Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005).
4
Plaintiff’s application to cross-appeal raises two issues: (1) whether
Rengachary’s stipulation to admit medical records constituted a general
appearance, thereby preventing Rengachary from arguing that service of process
was inadequate; and (2) whether equitable estoppel barred Rengachary from
objecting to service of process.
6
III. ANALYSIS
A. TRIAL BY JURY
Defendant Rengachary moved for summary disposition under MCR
2.116(C)(2), (3), (7), and (8).5
MCR 2.116(C)(3) specifies that summary
disposition should be granted if “[t]he service of process was insufficient,” and
MCR 2.116(C)(7) specifies that summary disposition should be granted if “[t]he
claim is barred because of . . . statute of limitations . . . .” Plaintiff argues that
because Rengachary moved for summary disposition under MCR 2.116(C)(7), and
because plaintiff timely moved for a jury trial, plaintiff was entitled under MCR
2.116(I)(3) to a jury trial on the issue of when service of process occurred. MCR
2.116(I)(3) states:
A court may, under proper circumstances, order immediate
trial to resolve any disputed issue of fact, and judgment may be
entered forthwith if the proofs show that a party is entitled to
judgment on the facts as determined by the court. An immediate trial
may be ordered if the grounds asserted are based on subrules (C)(1)
through (C)(6), or if the motion is based on subrule (C)(7) and a jury
trial as of right has not been demanded on or before the date set for
hearing. If the motion is based on subrule (C)(7) and a jury trial has
been demanded, the court may order immediate trial, but must
afford the parties a jury trial as to issues raised by the motion as to
which there is a right to trial by jury. [Emphasis added.]
5
In the motion based on (C)(2), (3), and (8), Rengachary solely argued that
service of process was insufficient. Therefore, this motion was essentially based
on (C)(3) and discussion of (C)(2) and (8) is unnecessary. In the motion based on
(C)(7) and (8), Rengachary solely argued that he had not been served before the
expiration of the period of limitations. Therefore, this motion was essentially
based on (C)(7) and discussion of (C)(8) is unnecessary.
7
Thus, MCR 2.116(I)(3) states that a trial court may hold a trial to determine
disputed issues of fact in motions based on MCR 2.116(C)(1) through (7). By
providing that “[a]n immediate trial may be ordered if the grounds asserted are
based on subrules (C)(1) through (C)(6),” and then establishing the circumstances
under which a jury trial would be required if the grounds asserted are based on
subrule (C)(7), MCR 2.116(I)(3) indicates that a trial court has the discretion to
conduct a bench trial to resolve disputed factual questions relating to motions
based on (C)(1) through (C)(6). However, a jury trial is required when: (1) the
motion is based on MCR 2.116(C)(7); (2) a jury trial has been demanded; and (3)
the issue raised by the motion is an issue “as to which there is a right to trial by
jury.” Unless each of these three conditions is satisfied, a trial court is never
required to afford a jury trial under MCR 2.116(I)(3).
Rengachary’s motions for summary disposition did not permit a jury trial
because the (C)(3) motion only allows the trial court the discretion to order a
bench trial, and the (C)(7) motion fully hinged on a determination of whether
Rengachary had been sufficiently served under (C)(3).
Rengachary’s motion
under (C)(7) stated that the period of limitations had expired because “Dr.
Rengachary was not properly served with the Complaint and was not on notice of
the lawsuit until after the running of the statute of limitations.” Thus, the issue
arising from the (C)(7) motion concerned only the sufficiency of service before
the expiration of the period of limitations. In his (C)(3) motion, Rengachary
8
claimed that he had been insufficiently served under MCR 2.105(A), which
requires that service be made either “personally,” or by “sending a summons and a
copy of the complaint by registered or certified mail.” Rengachary alleged that
neither of these circumstances occurred. Plaintiff contended that a white-coated
doctor who said he was Rengachary was served on March 11, 2004, while
Rengachary claimed that he had not been served until March 18, when a man
“barged in” at the clinic and left a summons on a desk. If Rengachary was not
personally served on March 11, this alleged service on March 18 would be
insufficient under MCR 2.105(A). Thus, resolution of the (C)(7) motion depended
solely on a determination of the sufficiency of service under (C)(3). Because
MCR 2.116(I)(3) allows a trial court to conduct a bench trial to determine whether
the service was sufficient, the Court of Appeals erred by holding that a jury trial
was required in the instant case.6
6
The fact that Rengachary brought a motion under (C)(7) does not
necessitate a jury trial. Under MCR 2.116(I)(3), a trial court must provide a jury
trial with regard to a (C)(7) motion if a jury trial has been demanded-- which it
was here-- and there is a question of fact in the issue raised by the motion “as to
which there is a right to trial by jury.” Because MCR 2.116(I)(3) expressly does
not require a trial by jury to resolve disputed factual questions arising from (C)(3)
motions, and the factual issue in this case was resolved through the (C)(3) motion,
we do not believe the (C)(7) motion can be said to pertain to a factual issue “as to
which there is a right to trial by jury.” There is simply no “right to trial by jury” in
the present context because once it was determined that the service was
insufficient under (C)(3), there was no disputed factual question that service had
occurred within the period of limitations.
9
The Court of Appeals relied on this Court’s decision in Phillips v Mirac,
Inc, 470 Mich 415; 685 NW2d 174 (2004), to conclude that plaintiff possessed a
right to trial by jury. Regarding the proper role of a jury, Phillips stated: “It is for
the jury to assimilate the facts presented at trial, draw inferences from those facts,
and determine what happened in the case at issue.” Id. at 428. The Court of
Appeals misinterpreted Phillips. Although Phillips recognized, unremarkably,
that a jury’s role is defined by the determination of factual issues, it nowhere
follows from this that every factual issue must be determined by a jury. It is
sufficient for present purposes to observe that such a conclusion transgresses the
language of MCR 2.116(I)(3) that a trial court “may,” but is not required to,
conduct a bench trial to determine disputed issues of fact in motions for summary
disposition brought under MCR 2.116(C)(1) through (6).
Nothing stated in
Phillips requires that a trial court conduct a jury trial on every disputed factual
question raised in motions under MCR 2.116(C)(3) and (7).
The Court of Appeals and plaintiff also cite Kermizian v Sumcad, 188 Mich
App 690; 470 NW2d 500 (1991), and Moss v Pacquing, 183 Mich App 574; 455
NW2d 339 (1990), in support of their position that a jury trial is required in the
present circumstances. However, both those cases involved entirely different
disputes concerning when a plaintiff should have discovered a cause of action and
therefore the dates on which the period of limitations started and expired. In the
instant case, the parties do not dispute when the period of limitations started or
10
expired. Rather, the parties acknowledge that the period of limitations expired on
March 17, 2004, because of the tolling of the statute of limitations under MCL
600.5856(d).
The instant dispute centers on whether service of process was
sufficient before the expiration of the period of limitations, and not on the term of
the statute of limitations.
Neither Kermizian nor Moss, in our judgment, is
relevant to whether a jury trial is required in the instant case.
B. GENERAL APPEARANCE
Plaintiff next contends that Rengachary had entered a general appearance
before contesting the service of process, thereby granting the trial court
jurisdiction over Rengachary regardless of when service occurred. Plaintiff states
that Rengachary had entered a general appearance when his counsel signed a
stipulation to introduce medical records in exchange for plaintiff’s agreement to a
two-week extension to file responsive pleadings. On the basis of this stipulation,
plaintiff asserts that Rengachary may not object to the sufficiency of the service.
The rule to avoid waiver of service of process objections under MCR
2.116(C)(3) is found in MCR 2.116(D)(1), which provides that a defendant waives
the ability to object to service of process under MCR 2.116(C)(3) unless the
objection is raised in the defendant’s first motion or responsive pleading:
The grounds listed in subrule (C)(1), (2), and (3) must be
raised in a party’s first motion under this rule or in the party’s
responsive pleading, whichever is filed first, or they are waived.
[MCR 2.116(D)(1).]
11
Thus, under the actual language of MCR 2.116(D)(1), a party generally
waives objections to service of process under MCR 2.116(C)(3) unless the party
complies with the court rule. In the instant case, Rengachary complied with MCR
2.116(D)(1) by raising the (C)(3) issue in his first motions for summary
disposition, filed on April 16, 2004. Therefore, Rengachary’s stipulation to the
admission of medical records was irrelevant to whether he complied with MCR
2.116(D)(1).
By raising the (C)(3) issue in his first motion for summary
disposition, Rengachary successfully avoided waiver of the issue of the
sufficiency of service of process under MCR 2.116(C)(3).7
Plaintiff cites Penny v ABA Pharmaceutical Co (On Remand), 203 Mich
App 178; 511 NW2d 896 (1993), for the proposition that “[a] party who enters a
general appearance and contests a cause of action on the merits submits to the
court’s jurisdiction and waives service of process objections.” Id. at 181.
7
The dissent asserts that we provide “no sound reason” for our decision,
post at 4, and that MCR 2.116(D)(1) “in no way excludes the possibility that the
right to raise [a service of process] defense can be waived in a manner other than
failing to raise the defense in a motion or first responsive pleading.” Post at 2. To
the contrary, MCR 2.116(D)(1) establishes that a defense under MCR 2.116(C)(3)
will be waived unless MCR 2.116(D)(1) is complied with. That is, MCR
2.116(D)(1) creates a general rule of waiver of (C)(3) objections, and then
provides the only exception to that general rule. For this reason, whether a party
“submits to the court’s jurisdiction,” post at 2, is irrelevant in determining whether
a party has waived a (C)(3) objection.
12
Plaintiff asserts that Rengachary’s stipulation to admit medical records
constituted a general appearance, which prevents him from subsequently objecting
to the sufficiency of service.
However, the rule stated in Penny clearly sweeps beyond the scope of MCR
2.116(D)(1), because Penny would hold that a defendant waives service of process
objections simply by making a general appearance. Under MCR 2.116(D)(1), a
defendant might make a general appearance and still not waive a (C)(3) objection
to service of process. The holding in Penny therefore conflicts with the language
of MCR 2.116(D)(1). Indeed, Penny did not even consider MCR 2.116(D)(1)
because the trial court in Penny had dismissed the defendant under MCR
2.102(E).8 The holding in Penny that a party making a general appearance thereby
waives objections to service of process is broad enough to encompass motions
under MCR 2.116(C)(3), and thus the holding in Penny is contrary to MCR
8
(1) On the expiration of the summons as provided in subrule (D),
the action is deemed dismissed without prejudice as to a defendant
who has not been served with process as provided in these rules,
unless the defendant has submitted to the court’s jurisdiction. [MCR
2.102(E)(1).]
MCR 2.102(D) states that, generally, a summons expires “91 days after the date
the complaint is filed.”
13
2.116(D)(1). To the extent Penny conflicts with MCR 2.116(D)(1), it must be
overruled.9
C. VICARIOUS LIABILITY
The remaining defendants, Detroit Medical Center, Harper-Hutzel Hospital,
and University Neurosurgical Associates, contest the Court of Appeals conclusion
that plaintiff could proceed with his vicarious liability claims even if the claims
against defendant Rengachary were dismissed. This Court has defined vicarious
liability as “‘indirect responsibility imposed by operation of law.’” Cox v Flint Bd
of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356 (2002), quoting Theophelis v
Lansing Gen Hosp, 430 Mich 473, 483; 424 NW2d 478 (1988). “[T]he principal
‘is only liable because the law creates a practical identity with his [agents], so that
he is held to have done what they have done.’” Cox, supra at 11, quoting Smith v
Webster, 23 Mich 298, 300 (1871). This Court has also stated:
9
Plaintiff also argues that equitable estoppel bars Rengachary from
objecting to service of process because Rengachary signaled that he would contest
the case on the merits by stipulating the admission of medical records. However,
equity cannot “trump an unambiguous and constitutionally valid statutory
enactment.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 591; 702 NW2d 539
(2005). Parties are bound to follow the court rules in the same manner that parties
are bound to follow statutory enactments. See MCR 1.102 (stating that the court
rules “govern all proceedings in actions brought on or after [March 1, 1985]”).
Therefore, equity cannot prevail over an unambiguous court rule. Moreover, this
Court preconditions the exercise of equitable power on the existence of “fraud,
mutual mistake, or any other ‘unusual circumstance[s] . . . .’” Devillers, supra at
591. Because Rengachary’s (C)(3) motion complied with MCR 2.116(D)(1), and
no indication of fraud, mutual mistake, or unusual circumstances has been shown,
we decline to apply equitable estoppel in this case.
14
“‘Vicarious liability is based on a relationship between the
parties, irrespective of participation, either by act or omission, of the
one vicariously liable, under which it has been determined as a
matter of policy that one person should be liable for the act of the
other.’” [Theophelis, supra at 483, quoting Dessauer v Mem Gen
Hosp, 96 NM 92, 108; 628 P2d 337 (Ct App, 1981), quoting Nadeau
v Melin, 260 Minn 369, 375-376;110 NW2d 29 (1961).]
Vicarious liability thus rests on the imputation of the negligence of an agent to a
principal. Nothing in the nature of vicarious liability, however, requires that a
judgment be rendered against the negligent agent.
Rather, to succeed on a
vicarious liability claim, a plaintiff need only prove that an agent has acted
negligently. At issue in this case is the effect of the dismissal of the claims against
Rengachary on the vicarious liability claims against the remaining defendants.
MCR 2.504(B)(3) is dispositive of this issue. MCR 2.504(B) provides:
(1) If the plaintiff fails to comply with these rules or a court
order, a defendant may move for dismissal of an action or a claim
against that defendant.
* * *
(3) Unless the court otherwise specifies in its order for
dismissal, a dismissal under this subrule or a dismissal not provided
for in this rule, other than a dismissal for lack of jurisdiction or for
failure to join a party under MCR 2.205, operates as an adjudication
on the merits. [Emphasis added.]
Because Rengachary moved for summary disposition under MCR 2.116(C)(3) and
(C)(7), MCR 2.504(B)(3) applies. Moreover, the trial court did not dismiss for
“lack of jurisdiction or for failure to join a party under MCR 2.205,” or “otherwise
specif[y]” that the order of dismissal was something other than a dismissal on the
merits. Rather, the trial court stated in its order that the dismissal was “with
15
prejudice.”
Therefore, under MCR 2.504(B)(3), the dismissal of the claims
against Rengachary “operates as an adjudication on the merits.”
Because the remaining defendants may only be vicariously liable on the
basis of the imputed negligence of Rengachary, plaintiff must demonstrate that
Rengachary was negligent in order for the remaining defendants to be found
vicariously liable.
However, the dismissal of the claims against Rengachary
operates as an adjudication on the merits of the claims against Rengachary.
Plaintiff consequently is unable to show that the remaining defendants are
vicariously liable for the acts of Rengachary, because the dismissal of the claims
against Rengachary prevents plaintiff from arguing the merits of the negligence
claim against Rengachary. Therefore, the Court of Appeals erred by concluding
that the vicarious liability claims against the remaining defendants could proceed
if the claims against Rengachary were dismissed for failure to be served process
within the statute of limitations period.
Plaintiff cites Rogers v Colonial Fed S & L Ass’n, 405 Mich 607; 275
NW2d 499 (1979), to argue that a summary disposition motion on statute of
limitations grounds does not address the merits of a case. Rogers said, “An
accelerated judgment based on the three-year statute of limitations is not an
adjudication on the merits of a cause of action.” Id. at 619 n 5. Rogers cited
Nordman v Earle Equip Co, 352 Mich 342; 89 NW2d 594 (1958), in support of
this proposition, and Norman cited McKinney v Curtiss, 60 Mich 611; 27 NW 691
16
(1886). The latter two cases were decided before the adoption of the General
Court Rules of 1963. Because the cited holdings in those cases were superseded
by the General Court Rules of 1963, they provide little support for the holding in
Rogers.
Moreover, Rogers failed altogether to address the effect of then-
applicable GCR 1963, 504.2, which stated:
For failure of the plaintiff to comply with these rules or any
order of court, a defendant may move for dismissal of an action or of
any claim against him . . . . Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack
of jurisdiction, operates as an adjudication upon the merits.
GCR 1963, 504.2 was substantially similar to the current MCR 2.504(B)(3).
Because the holding of Rogers was not in accord with the applicable General
Court Rules of 1963, Rogers was wrongly decided to the extent that it suggests
that a motion for summary disposition on statute of limitations grounds does not
operate as an adjudication on the merits.10
10
Before overruling prior precedent, this Court must not only determine-as we do here-- that an earlier decision of this Court was wrongly decided, but also
that overruling the earlier decision is in all other respects appropriate. Robinson v
Detroit, 462 Mich 439, 464-466; 613 NW2d 307 (2000). We conclude that there
are no factors identified in Robinson that would justify retaining Rogers as the law
of Michigan despite its inconsistency with the written law of our state, in this case
MCR 2.504(B)(3). In particular, we hold that there is no reasonable reliance
interest on plaintiff’s part, or on the part of similarly situated plaintiffs, that would
be undermined by the overruling of Rogers. We do not believe that any plaintiff
would have risked late service of process, and hence lack of compliance with the
statute of limitations, on the basis that such lack of compliance, although it might
result in the dismissal of a lawsuit against an agent, would not constitute an
adjudication on the merits against the agent and therefore would not require the
(continued…)
17
Because MCR 2.504(B)(3) indicates that the dismissal of the claims against
defendant Rengachary operates as an adjudication on the merits, and because, in
our judgment, Rogers was wrongly decided, the remaining defendants cannot be
held vicariously liable for Rengachary’s acts. Therefore, the remaining defendants
should be granted summary disposition on plaintiff’s vicarious liability claims.
D. OTHER CLAIMS
The trial court dismissed the plaintiff’s remaining claims against defendants
Detroit Medical Center and Harper-Hutzel Hospital. Plaintiff did not appeal these
dismissals in the Court of Appeals or in this Court. Therefore, plaintiff is deemed
to have abandoned these claims.
IV. CONCLUSION
The Court of Appeals judgment is reversed insofar as it required a jury trial
to determine the sufficiency of service of process before the expiration of the
statute of limitations period. Moreover, Rengachary’s alleged general appearance
did not waive his objection to service of process under MCR 2.116(C)(3), which
was properly raised under MCR 2.116(D)(1). Therefore, the Court of Appeals
judgment is reversed insofar as it held that such a waiver may occur as a result of a
general appearance. Finally, the Court of Appeals judgment is reversed insofar as
it allowed plaintiff to pursue vicarious liability claims against the remaining
(continued…)
dismissal of a lawsuit against a principal based on vicarious liability.
18
defendants. This case is remanded to the trial court for reinstatement of summary
disposition for all defendants.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
19
STATE OF MICHIGAN
SUPREME COURT
ABDUL AL-SHIMMARI,
Plaintiff-Appellee/
Cross-Appellant,
v
No. 130078
THE DETROIT MEDICAL CENTER,
HARPER-HUTZEL HOSPITAL,
UNIVERSITY NEUROSURGICAL
ASSOCIATES, P.C., and SETTI
RENGACHARY, M.D.,
Defendants-Appellants/
Cross-Appellees.
_______________________________
CAVANAGH, J. (dissenting).
Although I agree with the majority’s analysis in part III(A) of its opinion, I
do not believe that we need to reach the issue regarding whether a jury trial is
required to resolve a dispute over service of process. Rather, this case can and
should be decided on the ground that defendant Setti Rengachary, M.D., waived
his right to challenge the sufficiency of service of process when his counsel,
before disputing sufficiency, participated in an action that resulted in the trial
court issuing an order. For these reasons, I would reverse the judgment of the
Court of Appeals in part and remand this case for trial.
The majority apparently concludes that because MCR 2.116(D)(1)
describes the manner in which a service of process dispute must be raised, then as
long as a party raises the issue in that manner, his ability to raise the issue cannot
be challenged.
But the majority completely ignores fundamental principles
regarding waiver.
The instructions contained in MCR 2.116(D)(1) pertaining to when a
defense regarding service of process must be raised in no way excludes the
possibility that the right to raise such a defense can be waived in a manner other
than failing to raise the defense in a motion or first responsive pleading. Namely,
a waiver of the right to raise that defense occurs when a party submits to the
court’s jurisdiction before raising the defense.
Because waiver can occur in ways other than failing to comply with the
cited court rule, it is important to examine the general rules behind appearances
and the consequences of appearing before a court. MCR 2.117(B), the court rule
governing appearances of attorneys before the trial court, outlines the following
rules:
(1) In General. An attorney may appear by an act indicating
that the attorney represents a party in the action. An appearance by
an attorney for a party is deemed an appearance by the party. Unless
a particular rule indicates otherwise, any act required to be
performed by a party may be performed by the attorney representing
the party.
(2) Notice of Appearance.
(a) If an appearance is made in a manner not involving the
filing of a paper with the court, the attorney must promptly file a
written appearance and serve it on the parties entitled to service.
The attorney’s address and telephone number must be included in
the appearance.
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(b) If an attorney files an appearance, but takes no other
action toward prosecution or defense of the action, the appearance
entitles the attorney to service of pleadings and papers as provided
by MCR 2.107(A).
In Penny v ABA Pharmaceutical Co (On Remand), 203 Mich App 178,
181-182; 511 NW2d 896 (1993), the Court of Appeals explained the corollary
principles surrounding appearances by attorneys, which principles accord with
the court rule:
A party who enters a general appearance and contests a cause
of action on the merits submits to the court’s jurisdiction and waives
service of process objections. In re Slis, 144 Mich App 678, 683;
375 NW2d 788 (1985). Generally, any action on the part of a
defendant that recognizes the pending proceedings, with the
exception of objecting to the court’s jurisdiction, will constitute a
general appearance. Only two requirements must be met to render
an act adequate to support the inference that there is an appearance:
(1) knowledge of the pending proceedings and (2) an intent to
appear. Ragnone v Wirsing, 141 Mich App 263, 265; 367 NW2d
369 (1985). A party that submits to the court’s jurisdiction may not
be dismissed for not having received service of process. MCR
2.102(E)(2).
These principles can be traced in this Court’s jurisprudence as far back as
1929. See Najdowski v Ransford, 248 Mich 465, 471-472; 227 NW 769 (1929).
And the principles have not varied over time. See, e.g., Macomb Concrete Corp
v Wexford Corp, 37 Mich App 423, 425; 195 NW2d 93 (1971) (holding that
“[o]ne of the effects of submitting to the court’s jurisdiction by making a general
appearance is that a party waives any objection to service of process”); Ragnone,
supra at 265-266 (holding that when the defendant “communicated with plaintiff
for the purpose of negotiating a settlement, wrote a letter seeking an extension of
3
time for filing an answer, and even attended the scheduled meeting,” the
defendant “appeared” before the court). The majority provides no sound reason
for ignoring the dispositive effect of a party submitting himself to the jurisdiction
of a court before contesting that court’s jurisdiction over him.
Under the
majority’s novel rationale, a party can fully participate in a case and such
participation will have no consequence as long as the party challenges service of
process in his first motion or first responsive pleading.
This new rule,
accomplished by unjustifiably overruling Penny, supra,1 turns the concepts of
jurisdiction and waiver on their heads, for a party can ask for relief from the
court, get such relief, and then successfully argue that the court had no
jurisdiction to rule in the matter.
In fact, that is precisely what occurred in the present case. Defendant
Rengachary, through his attorney, submitted himself to the jurisdiction of the
court and, thus, waived his right to challenge the sufficiency of service or
process, when he expressed knowledge of the pending proceedings and an intent
to appear. After the date on which plaintiff claims defendant Rengachary was
given notice of the lawsuit by being served a summons and complaint, plaintiff’s
1
The majority contends that the concepts in Penny are inconsistent with
MCR 2.117(B). But the Penny Court’s analysis of waiver is far broader than the
court rule governing appearances, and the court rule in no way obviates the Penny
reasoning. The majority fails to explain or provide any sound justification
regarding why a court rule dictating when a defense involving service of process
must be raised abrogates widely accepted notions of submitting oneself to the
(continued…)
4
counsel communicated with Bart O’Neill of Saurbier & Siegan, P.C., who
maintained that he represented all defendants in the matter.
Then, O’Neill
represented each of the defendants’ interests by participating in formulating and
executing a stipulation and order. Plaintiff’s counsel and O’Neill negotiated a
deal in which they stipulated admitting all of plaintiff’s medical records in
exchange for plaintiff granting a two-week extension for defendants to file
responsive pleadings. At no time did defense counsel intimate any problem with
service of process or suggest that he would be asserting that one defendant,
Rengachary, was not served. Rather, O’Neill signed a stipulation that contained
this statement:
Plaintiff’s counsel has contacted and spoken with Counsel for
the Defendants SETTI S. RENGACHARY, M.D., THE DETROIT
MEDICAL CENTER, HARPER-HUTZEL HOSPITAL, AND
UNIVERSITY NEUROSURGICAL ASSOCIATES, P.C., with this
information and both hereby stipulate and agree to the above request
in the above referenced matter.
And O’Neill’s signature was “on behalf of all Defendants,” as also reflected in
that document.
Further, the parties, through their respective attorneys, then submitted a
proposed order to the trial court, which order formalized the parties’ agreement
that plaintiff’s medical records would be admitted at trial. The trial court signed
the order, and it was entered in the court file.
(continued…)
jurisdiction of a court by appearing before it and, thus, waiving certain defenses.
5
These actions on the part of defendant Rengachary’s attorney constituted
“an act indicating that the attorney represents a party in the action,” which, under
MCR 2.117(B)(1), is an appearance. And the appearance clearly met the test set
forth in Penny, demonstrating that defendant had “knowledge of the pending
proceedings” and “an intent to appear.” Penny, supra at 182. Anyone reading
the stipulation—most importantly, the court—would have no reason to conclude
anything other than that O’Neill represented and was speaking on behalf of
defendant Rengachary, who would be presumed to have knowledge of that
representation. An attorney speaks for his client. Thus, defendant Rengachary
had knowledge of the pending proceedings and an intent to appear, and, in fact,
did appear.
At that time, the court assumed jurisdiction over defendant
Rengachary. And because he appeared before first asserting a service-of-process
defense through the measures set forth in MCR 2.116(D)(1), and jurisdiction was
obtained over him at that time, defendant Rengachary waived his right to
thereafter contest whether he had been properly served.
My conclusion on this issue would render the remaining issue moot.
Thus, I would not reach the issue whether dismissal of plaintiff’s claim against an
agent necessitates dismissal of plaintiff’s claims against the agent’s principals.
Instead, I would hold that plaintiff may proceed in his claim against all
defendants
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because defendant Rengachary submitted to the jurisdiction of the court and,
thus, waived his right to challenge service of process.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
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