AL-SHIMMARI v DETROIT MEDICAL CENTER
Docket No. 130078
Supreme Court of Michigan
Decided May 2, 2007
Rehearing denied, 478 Mich 1201.
477 MICH 280
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR and Justices CORRIGAN and YOUNG, the Supreme Court held:
The Court of Appeals erred in holding that a jury trial was required to determine when service of process occurred, that a waiver of objections to service of process under
1. Rengachary‘s motion for summary disposition under
2. Rengachary did not waive the claim under
3. The dismissal of the claims against Rengachary operated as an adjudication of those claims on the merits under
Reversed and remanded to the trial court.
Justice CAVANAGH, joined by Justices WEAVER and KELLY, dissenting, stated that the issue whether a jury trial is required to resolve a dispute over service of process need not be reached because Reganchary waived his right to challenge the sufficiency of service of process. The instructions contained in
1. MOTIONS AND ORDERS - SUMMARY DISPOSITION - QUESTIONS OF FACT - BENCH TRIAL - JURY TRIAL.
A trial court has the discretion to conduct a bench trial to resolve disputed factual questions related to motions for summary disposition based on
2. MOTIONS AND ORDERS - WAIVERS OF OBJECTION.
A defendant must raise an objection to the sufficiency of service of process under
3. NEGLIGENCE - MASTER AND SERVANT - VICARIOUS LIABILITY.
Vicarious liability rests on the imputation of the negligence of an agent to a principal; vicarious liability cannot be fоund where a court dismisses negligence claims against an agent for the plaintiff‘s failure to comply with the court rules or a court order, unless the negligence claims have been dismissed for lack of jurisdiction or for failure to join a party under
Law Offices of Andre M. Sokolowski, P.C. (by Andre M. Sokolowski), Law Offices of Michael S. Daoudi, P.C. (by Michael S. Daoudi), and Turner & Turner, P.C. (by Matthew L. Turner), for the plaintiff.
Saurbier & Siegan, P.C. (by Debbie K. Taylor, Scott A. Saurbier, and Bart P. O‘Neill), for the defendants.
MARKMAN, J. We heard oral argument on whether to grant the application and cross-application for leave to appeal in order to consider whether
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 different doctor concluded that plaintiff had suffered nerve injury as a result of the surgery.
Because the surgery took plаce on September 17, 2001, the two-year period of limitations expired on September 17, 2003.
(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 vicarious liability against Harper-Hutzel Hospital, Dеtroit 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
Plaintiff appealed by leave granted the order granting summary disposition in favor of Rengachary and as of right from the order granting summary disрosition 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 Nos. 259363 and 262655). The Court of Appeals held that plaintiff was entitled to a jury trial on the disputed
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).
III. ANALYSIS
A. TRIAL BY JURY
Defendant Rengachary moved for summary disposition under
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.]
Thus,
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 claimed that he had been insufficiently served under
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
The Court of Appeals and plaintiff also cite Kermizian v Sumcad, 188 Mich App 690; 470 NW2d 500
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 еxchange 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
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) .]
Thus, under the actual language of
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.
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
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 dоne what they have done.’ ” Cox, supra at 11, quoting Smith v Webster, 23 Mich 298, 300 (1871). This Court has also stated:
“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
(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.
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(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
Because the remaining defendants may only be vicariously liable on the basis of thе 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
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 (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
Because
D. OTHER CLAIMS
The trial court dismissed the plaintiff‘s remaining claims against defendants Detroit Medical Center and Harper-Hutzel Hospital. Plаintiff 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
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
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
The instructions contained in
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.
(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.
(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
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 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
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 оf service of 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 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
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.
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
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 because defendant Rengachary submitted to the jurisdiction of the court and, thus, waived his right to challenge service of process.
WEAVER and KELLY, JJ., concurred with CAVANAGH, J.