EST OF BRADLEY GUERRA V ROBERT H MACKIE MD

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STATE OF MICHIGAN COURT OF APPEALS ANGELINA GUERRA, as Personal Representative of BRADLEY GUERRA, Deceased, UNPUBLISHED June 11, 2002 Plaintiff-Appellant, v ROBERT H. MACKIE, M.D., RIVERSIDE MEDICAL ASSOCIATION, P.C., RAYMOND MAJKRZAK, M.D., and CHIPPEWA COUNTY WAR MEMORIAL HOSPITAL, No. 236268 Chippewa Circuit Court LC No. 98-003795-NH Defendants-Appellees. Before: Griffin, P.J., and Hood and Sawyer, JJ. GRIFFIN, P.J. (concurring). I concur in the result to affirm. However, I do not join in the lead opinion’s criticism of Scarsella v Pollack, 461 Mich 547; 607 NW2d 711 (2000). In my view, Scarsella was correctly decided. Furthermore, because “the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit,” id. at 549, the present case was never commenced. The filing was a “nullity” and the complaint was “null and void.” Id. Simply put, there can be no tolling of the statute of limitations if an action is never commenced. Holmes v Michigan Capital Medical Center, 242 Mich App 703; 620 NW2d 319 (2000). For this reason, the service of process of plaintiff’s invalid complaint did not toll the statute of limitations and therefore the lower court correctly granted summary disposition in favor of defendants. /s/ Richard Allen Griffin -1-

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