No. 328804
STATE OF MICHIGAN COURT OF APPEALS
June 27, 2017
FOR PUBLICATION Ingham Circuit Court LC No. 14-000527-NO
Before: SERVITTO, P.J., and MURPHY,
GLEICHER, J. (concurring).
The majority holds that a statute and a court rule irreconcilably conflict and that the court rule controls. I would hold that because the statute and the court rule are capable of accommodation, no conflict exists. The two provisions advance precisely the same principle: a party must be permitted to timely add an identified nonparty to a pending case. The statute adds that the statute of limitations for the original claim does not bar the addition if the amendment meets a time deadline. My analysis harmonizes the two provisions and yields the same result reached by the majority.
I
In 1995, the Legislature abrogated joint and several liability in certain tort cases, including this one. In place of joint and several liability, the Legislature constructed a system for allocating fault among all potential tortfeasors, parties and nonparties alike. The system permits a plaintiff to transform an identified nonparty at fault into a party: “Upon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against the nonparty.”
The Legislature foresaw that
The Supreme Court distilled these commandments in a subsection of
An amendment that adds a claim or defense relates back to the date of the
original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading. [ MCR 2.118(D) .]
Here, the plaintiff filed a first amended complaint naming Samsung as a defendant without having filed a motion seeking leave to do so. Samsung successfully argued in the trial court that plaintiff‘s neglect to file a motion nullified her ability to rely on the sentence in
Notably, unlike the statute, the court rule does not require leave of the court to file an amended complaint adding a nonparty if the amended complaint is filed within 91 days of the notice identifying the nonparty. Further, unlike the statute, the court rule does not expressly provide that the amended complaint will relate back to the date of the original complaint.
The majority holds that the amendment procedure in the statute and court rule conflict, “as the Legislature only contemplated amendment by leave and our Supreme Court called for amendment as a matter of course or right.” This conflict must be resolved in favor of the court rule, the majority concludes, as the dispute involves a matter of practice and procedure rather than substantive law. And regardless of the court rule‘s silence regarding relation back, the majority posits, the Legislature clearly desired “to allow the relation back of an amended pleading,” and that statutory provision remains “fully enforceable.” Because plaintiff timely filed her amended complaint, the majority concludes, summary judgement was improperly granted to Samsung.
I believe that the two provisions are capable of harmonious coexistence, and would not declare them in conflict.
II
Other published cases in this Court have explored the very same issue presented here, and with one exception I can add nothing of value to the majority‘s recount of those decisions. The exception is Bint v Doe, 274 Mich App 232, 237; 732 NW2d 156 (2007), in which then-Judge (now Justice) ZAHRA filed a concurring opinion expressing that the statute and court rule did not conflict “merely because the court rule uses the permissive word ‘may’ while the statute uses the mandatory word ‘shall.’ ” Judge ZAHRA reasoned that the court rule “addresses the conduct of the parties,” while the statute “is directed at the conduct of the court.” Id. at 237-238. These are “consistent,” Judge ZAHRA explained:
The plaintiff may elect to amend the complaint. If the plaintiff so elects, the court shall grant the amendment. There being no conflict between the statute and the court rule, we are bound to implement the remainder of
MCL 600.2957(2) , which provides that a “cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action. [Id. at 238.]
Preliminarily, it bears emphasis that “only in cases of irreconcilable conflict” should a court declare that a statute “supplants the Court‘s exclusive authority under
Indisputably, when the Supreme Court approved
Accordingly, the Supreme Court evidently decided that the court rule would permit a plaintiff to file an amended complaint adding an identified nonparty as a party without first filing a motion. In my view, the court rule and the statute are entirely consistent with regard to the central and controlling issue: a plaintiff‘s right to timely amend a complaint to add an identified nonparty at fault as a party. Read together, the two provisions permit a plaintiff to file a motion to amend, or not. Either way, the result is the same: the amendment must be permitted if it is timely. I see no irreconcilable conflict.1
A somewhat analogous case, Apsey v Mem Hosp, 477 Mich 120; 730 NW2d 695 (2007), contributes to my reasoning. Apsey involved two statutes addressing the notarization of out-of-state affidavits. One statute required that such affidavits include a clerk‘s certification and seal. The other required only the signature of the notary and an affixed seal. This Court decided that the more specific statute controlled. Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666; 702 NW2d 870 (2005). The Supreme Court reversed, holding that the two methods of proving a notarial act constituted equally acceptable alternatives, explaining:
The Legislature need not repeal every law in a given area before it enacts new laws that it intends to operate in addition to their preexisting counterparts. The Legislature has the power to enact laws to function and interact as it sees fit. And when it does so, this Court is bound to honor its intent. [Id. at 131.]
In my view, the statute and court rule at issue here are similarly complementary. If a plaintiff wishes to file a motion to add a nonparty, so be it. Strategic reasons may motivate this choice, such as compelling the defendant to respond to certain allegations in the plaintiff‘s motion, or educating the trial court about the issues. If time is of the essence, a plaintiff may instead elect to simply file an amended complaint. As in Apsey, the two alternative methods of accomplishing the same goal can live happily together, side by side.
Nor does a conflict exist regarding “relation back.”
Indeed, even comparing the language of
I would decide this case simply and cleanly by holding that plaintiff was permitted by both the statute and the court rule to file her amended complaint with or without first filing a motion to amend, and that the amendment relates back. Because the majority has adopted an analysis that
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
Notes
Plaintiff‘s failure to file an amended complaint in this case amount to a harmless error which the trial court should have disregarded.The court in which any action is pending, has power to amend any process, pleading or proceeding such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.