TERRACE LAND DEVELOPMENT V SEELIGSON & JORDAN
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STATE OF MICHIGAN
COURT OF APPEALS
TERRACE LAND DEVELOPMENT
CORPORATION, C AND L, INC., and PETER
SHEFMAN,
FOR PUBLICATION
March 19, 2002
9:00 a.m.
Plaintiffs-Counter-DefendantsAppellants,
v
No. 226902
Washtenaw Circuit Court
LC No. 99-005118-NM
SEELIGSON & JORDAN, LESLIE R.
SEELIGSON, and LAWRENCE R. JORDAN,
Defendants-Counter-PlaintiffsAppellees.
Updated Copy
June 21, 2002
Before: Sawyer, P.J., and Murphy and Hoekstra, JJ.
MURPHY, J.
Plaintiffs appeal as of right from a judgment granting defendants' motion for summary
disposition pursuant to MCR 2.116(C)(7). The trial court dismissed plaintiffs' legal malpractice
action on the ground that it was time-barred by the applicable statute of limitations. We reverse
and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiffs filed a complaint alleging three separate instances of legal malpractice
committed by defendants in two circuit court cases and in an appeal to this Court. In the appeal
before us now, plaintiffs only challenge the dismissal of the claim related to alleged malpractice
arising out of defendants' representation of plaintiffs in an action in the Washtenaw Circuit
Court, file number 96-6366-CH. There is no dispute that defendants' representation of plaintiffs
in that matter was terminated on June 17, 1997.
Plaintiffs filed the instant complaint on May 4, 1999. However, the complaint was not
delivered to an officer for service until July 16, 1999, and the complaint was actually served on
defendants on July 30, 1999. There is no dispute regarding the dates concerning the filing of the
complaint, the delivery of the complaint to the officer, and the service of the complaint. The
narrow issue presented to us, as agreed on by the parties, is whether the statute of limitations
barred plaintiffs' cause of action where the complaint was filed within the two-year limitation
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period but was not placed with an officer for service, and service was not effectuated, until after
the limitation period had expired.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and
(10), arguing that the statute of limitations barred plaintiffs' action, and the trial court granted the
motion pursuant to MCR 2.116(C)(7). The trial court ruled that pursuant to MCL 600.5856,
plaintiffs' failure to deliver the complaint to an officer until after the expiration of the statute of
limitations barred the action despite the language in MCR 2.101(B) and the timely filing of the
complaint. We disagree because MCL 600.5856 is not applicable under the facts of this case.
II. APPLICABLE LAW
A. MCR 2.116(C)(7) AND STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition
under MCR 2.116(C)(7). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43,
46; 631 NW2d 59 (2001). In determining whether a party is entitled to judgment as a matter of
law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff 's well-pleaded factual
allegations, affidavits, or other documentary evidence and construe them in the plaintiff 's favor.
Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001). Where there
are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the
decision regarding whether a plaintiff 's claim is barred by the statute of limitations is a question
of law that this Court reviews de novo. Id.
B. STATUTE OF LIMITATIONS
MCL 600.5805 and MCL 600.5838 require "a plaintiff in a legal malpractice action to
file suit within two years of the attorney's last day of service, or within six months of when the
plaintiff discovered, or should have discovered the claim." Gebhardt v O'Rourke, 444 Mich 535,
539; 510 NW2d 900 (1994).
C. MCR 2.101(B) AND MCL 600.5856
MCR 2.101(B) provides that "[a] civil action is commenced by filing a complaint with a
court." MCL 600.5856 provides, in relevant part:
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.
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At the time the complaint is filed and a copy of the summons and
complaint in good faith are placed in the hands of an officer for immediate
service, but in this case the statute is not tolled longer than 90 days after the copy
of the summons and complaint is received by the officer.
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III. TRIAL COURT'S RULING AND THE PARTIES' ARGUMENTS ON APPEAL
The trial court specifically found that MCR 2.101(B) and MCL 600.5856 conflict, and
that the Legislature considered public policy concerns in enacting MCL 600.5856, rather than the
judicial dispatch of litigation; therefore, pursuant to McDougall v Schanz, 461 Mich 15; 597
NW2d 148 (1999), MCR 2.101(B) must yield to MCL 600.5856. The trial court concluded that
because the complaint was not served or placed with an officer for service until after the
limitation period expired, plaintiffs' action was time-barred.
Plaintiffs argue that MCR 2.101(B) and MCL 600.5856 do not conflict and that even if
they do conflict, the court rule still prevails. Plaintiffs rely on Buscaino v Rhodes, 385 Mich 474;
189 NW2d 202 (1971), partially overruled in McDougall, supra at 32, in support of their
position, and they contend that McDougall, on which the trial court relied, should not be applied
retroactively.
Defendants argue that MCR 2.101(B) and MCL 600.5856 do conflict, and that § 5856
controls because it was an enactment of substantive rather than procedural law. Defendants
further argue that McDougall overruled Buscaino, that McDougall should be applied
retroactively, and that plaintiffs waived any argument regarding the retroactive application of
McDougall.
Defendants misinterpret, as did the trial court, the Buscaino decision, and the effect the
McDougall decision had on Buscaino. We shall now address those cases, along with additional
relevant case law.
IV. ANALYSIS
A. Buscaino v Rhodes
In Buscaino, supra at 477, our Supreme Court addressed a case in which the plaintiffs
filed a complaint six days before the expiration of the period of limitation. The plaintiffs gave
the summons and complaint to a deputy sheriff for service on the same date the complaint was
filed; however, the plaintiffs instructed the deputy to wait to serve the defendants until one of the
defendants returned to Michigan. Id. Service on the defendants was made approximately two
months after the limitation period expired. Id. The trial court and this Court ruled that the
plaintiffs' action was time-barred pursuant to MCL 600.5856. Id.
The Buscaino Court first noted its constitutional authority to implement general rules
pertaining to practice and procedure in all courts throughout Michigan. Id. at 478. The Court
further noted that statutes of limitation are considered to be procedural. Id. at 480. Our Supreme
Court then cited GCR 1963, 101, which provided that "[a] civil action is commenced by filing a
complaint with the court." Buscaino, supra at 480. The language is virtually identical to that
found in MCR 2.101(B). The Supreme Court stated that GCR 1963, 101 has meaning within the
context of the statute of limitations, as well as every other context. Buscaino, supra at 481. The
Court acknowledged the Legislature's enactment of MCL 600.5856 and stated that "we have a
seeming conflict between the Court Rule and the legislative act . . . ." Buscaino, supra at 480
(emphasis added).
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The Buscaino Court went on to state that MCL 600.5856 has nothing to do with when an
action is commenced, but instead has to do with when the statute of limitations is tolled. Id. The
Court further stated:
"To toll the statute of limitations means to show facts which remove its
bar of the action." Black's Law Dictionary (4th ed), p 1658.
Since there can be no question of "removing" the bar of the statute of
limitations unless and until, in the absence of tolling[,] the statute would have
barred the action, there can be no issue of "tolling" in any case where the action is
commenced within the statutory period of limitation.
It is only when the action is not commenced within the statutory period—
as determined by consulting the date of the claim, the date of filing the complaint
and a calendar—it is only when a prima facie bar of the statute appears, that
tolling comes into play. [Buscaino, supra at 481 (emphasis in original).]
Our Supreme Court, having found that the action was filed within the limitation period
and that there was no tolling issue under MCL 600.5856, discussed the purpose of MCL
600.5856. Buscaino, supra at 481-484. The Court ruled that MCL 600.5856 "deals only with
prior lawsuits between the parties which have not adjudicated the merits of the action."
Buscaino, supra at 482. The Supreme Court further explained, quoting the Committee Comment
on the statute:
"In the event of the dismissal, on some ground other than on the merits (as
for example—lack of jurisdiction over the subject matter) of an action in which
jurisdiction over the defendant is acquired, the period of time from the time of
service or the acquisition of jurisdiction over the defendant until dismissal will not
count as a part of the time of limitation, for during such time the statute has been
tolled." [Id. at 482-483.]
The Buscaino Court concluded that it had the authority to enact GCR 1963, 101 and that the
court rule controlled the Court's decision; therefore, the statute of limitations did not bar the
plaintiffs' cause of action. Buscaino, supra at 483-484.
We believe that Buscaino supports the proposition that where a party, for the first time,
files suit against a defendant, the limitation period is measured at the time the complaint was
filed pursuant to MCR 2.101(B). We further believe, pursuant to Buscaino, that MCL 600.5856
comes into play where a party files suit beyond the limitation period and seeks to toll the time
that elapsed during a previously dismissed lawsuit against the same defendant from the date of
service, acquisition of jurisdiction, or placement of process with an officer for delivery until a
dismissal that is not based on the merits of the action.1 Here, plaintiffs' complaint was an
1
In Lausman v Benton Twp, 169 Mich App 625, 630; 426 NW2d 729 (1988), this Court,
addressing MCL 600.5856 and citing Buscaino, stated that "the provision deals only with prior
lawsuits which have not adjudicated the merits of the action and does not come into play unless
the present action was not commenced within the limitation period." We note that where tolling
(continued…)
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original filing, and there had been no previous complaint or dismissal involving defendants.
Therefore, Buscaino directs us to conclude that plaintiffs' complaint was filed in accordance with
MCR 2.101(B) within the statutory period, thereby precluding summary disposition under MCR
2.116(C)(7). The question becomes whether our Supreme Court's decision in McDougall makes
inapplicable the relevant principles found in Buscaino.
B. McDougall v Schanz
In McDougall, supra at 18, our Supreme Court held that MCL 600.2169, which provides
strict requirements for the admission of expert testimony in medical malpractice cases, was an
enactment of substantive law; therefore, the statute was a valid exercise of the Legislature's
prerogative to make public policy. The Supreme Court found that MRE 702, concerning expert
testimony, conflicted with MCL 600.2169; however, because MCL 600.2169 was an enactment
of substantive law, it did not impermissibly infringe the Court's constitutional rule-making
authority over matters of practice and procedure. McDougall, supra at 26, 37.
Our Supreme Court, as part of its analysis, stated:
Since Perin [v Peuler (On Rehearing), 373 Mich 531; 130 NW2d 4
(1964)], this Court, again without any apparent consideration of the meaning of
"practice and procedure" as stated in [Const 1963,] art 6, § 5, has reaffirmed
Perin's broad statement of our authority over all matters relating to the admission
of evidence. See, e.g., People v Mitchell, 402 Mich 506; 265 NW2d 163 (1978);
People v Jackson, 391 Mich 323; 217 NW2d 22 (1974); Buscaino v Rhodes, 385
Mich 474; 189 NW2d 202 (1971). [McDougall, supra at 29 (emphasis added).]
The McDougall Court further ruled that "[t]o the extent that this Court's prior decision in
Perin and its progeny suggest that all statutes affecting the admission of evidence are procedural,
they are overruled." Id. at 32.
The McDougall decision did not overrule the Buscaino Court's determination that MCL
600.5856 applies to cases where a prior lawsuit was involved between the parties, nor did it
overrule the determination that the date of filing a complaint measured the time frame on which
to determine whether the statute of limitations barred a claim. The Buscaino decision did not
involve a conflict between the court rule and MCL 600.5856 because the statute was not
applicable. At most, McDougall simply overruled the language in Buscaino that touched on the
Perin decision, which the Buscaino Court cited in support of its position that, pursuant to the
Michigan Constitution, the Legislature must defer to the Michigan Supreme Court on the matter
regarding when an action is commenced for purposes of the statute of limitations. Ultimately,
however, Buscaino was not decided on those grounds because MCL 600.5856 was not in conflict
with the court rule or applicable to the case. In McDougall, supra at 24, the Supreme Court
(…continued)
is premised on placement of a complaint with an officer, tolling could end before a dismissal
without prejudice because the tolling period is limited to ninety days in that circumstance. MCL
600.5856(c).
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noted that it is not necessary to determine whether a statute is a legislative attempt to supplant
the Court's authority where there is no inherent conflict with a court rule.
Any question regarding the effect of McDougall on Buscaino, in regards to the date a
court must rely on in general in addressing a statute of limitations defense, was answered by our
Supreme Court in Scarsella v Pollak, 461 Mich 547, 552, n 3; 607 NW2d 711 (2000), wherein
the Court stated:
In general, of course, a statute of limitations requires only that a complaint
be filed within the limitation period. Buscaino v Rhodes, 385 Mich 474, 481; 189
NW2d 202 (1971), partially overruled on other grounds, McDougall v Schanz,
461 Mich 15; 597 NW2d 148 (1999).
Here, plaintiffs' complaint was filed within the two-year limitation period.
V. CONCLUSION
Because plaintiffs' action was never dismissed and refiled, MCL 600.5856 has no
application to this case, in that there is no "tolling" issue. Accordingly, we hold that plaintiffs
complied with the limitation period by filing their complaint pursuant to MCR 2.101(B) within
two years of the termination of the attorney-client relationship, and the fact of subsequent
placement of process with an officer and service of the complaint after the limitation period can
in no way result in the action being time-barred.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
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