Lead Opinion
In this medical malpractice action, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). Plaintiffs action arose out of a kidney transplant; she suffered injury because the kidney was not properly checked for a “cross-match” prior to transplantation, and it was subsequently discovered that there was a positive match. Plaintiff sent notices of intent to defendants pursuant to MCL 600.2912b, but filed her complaint 112 days later instead of waiting 182 days or more as required by statute, MCL 600.2912b(l). Although the trial court otherwise reached the only result possible under the currently binding caselaw precedent, the trial court erred by failing to afford plaintiff an opportunity to pursue the possibility of amending the filing date of the complaint pursuant to MCL 600.2301. We therefore reverse and remand.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(C)(7), where the claim is allegedly barred, the trial court must accept as true the
It has essentially always been the rule in Michigan that defendants must “apprise the plaintiff of the nature of the defense relied upon, so that he might be prepared to meet, and to avoid surprise on the trial.” Rosenbury v Angell, 6 Mich 508, 513 (1859). Today, MCR 2.111(F) provides that a defendant waives any affirmative defense not set forth in the defendant’s first responsive pleading. Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 164; 677 NW2d 874 (2003). An affirmative defense presumes liability and accepts a plaintiffs prima facie case, but asserts that the defendant is not liable for other reasons not set forth in the plaintiffs pleadings. Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241; 635 NW2d 379 (2001). We hold that failure to comply with purely procedural prerequisites for commencing a
We note, however, that although Electrolines, Inc did not so mention, affirmative defenses are not necessarily-waived by failing to state them in a first responsive pleading at the time that pleading is originally filed. Pursuant to MCR 2.111(F)(3), “[a]ffirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118” (emphasis added). Likewise, a defense “not asserted in the responsive pleading or by motion as provided by these rules is waived . . . .” MCR 2.111(F)(2) (emphasis added). Although affirmative defenses are not “pleadings,” McCracken v City of Detroit, 291 Mich App 522, 528; 806 NW2d 337 (2011), the court rules unambiguously permit them to be amended in the same manner as pleadings. This is noteworthy in part because the practice of filing “boilerplate” affirmative defenses consisting of generic, unsupported, bald assertions of every conceivable affirmative defense irrespective of, and possibly even contrary to, any known facts is not only unnecessary, but wasteful, counterproductive, and in some instances possibly even contrary to MCR 2.114(D). Rather, a defendant may move to amend their affirmative defenses to add any that become apparent at any time, and any such motion should be granted as a matter of course so long as doing so would not prejudice the plaintiff. See MCR 2.118(A)(2).
Furthermore, MCR 2.111(F)(3) requires that the party “must state the facts constituting” any affirmative defense so raised (emphasis added). The purpose of this requirement is to provide the opposing party with sufficient notice of the alleged affirmative defenses to permit that party to take a responsive position, and a
In this case, one group of defendants presented a list • of affirmative defenses that, in relevant part, stated, “Plaintiff failed to comply with the notice provisions of MCL 600.2912b; MSA 27A.2912b and that Plaintiffs action is thus barred; Defendant gives notice that it will move for summary disposition.” The other group of defendants did not even mention MCL 600.2912b at all. The latter group seems to assert that their affirmative defenses were sufficient because another defendant’s affirmative defenses were sufficient. The former group of defendants asserts that their affirmative-defense statement was sufficient because the “notice provisions of MCL 600.2912b” include the waiting period — which is described as a “notice period” in the statute. We disagree with both assertions. The affirmative defenses presented in this case were not sufficient to raise the affirmative defense of failure to comply with the notice period; consequently, that affirmative defense should be deemed waived.
A plaintiff may move for a more definite statement if the statement is vague or ambiguous. MCR 2.115(A). Plaintiff did not at that time move to strike any affirmative defenses as insufficient or request more
Because defendants failed to provide any, let alone a comprehensible or adequate, statement of facts supporting the relevant affirmative defense, we find the affirmative-defense statement by the defendants insufficient to raise the affirmative defense of plaintiffs failure to comply with the notice-period requirement of
Defendants alternatively argue that the trial court constructively granted leave to amend their affirmative defenses by considering the merits of defendants’ assertions that plaintiff failed to comply with MCL 600.2912b. As discussed, a party may amend filings as long as doing so will not prejudice the opposing party. MCR 2.118; MCL 600.2301; Stanke, 200 Mich App at 321. The record discloses no reason why the trial court could not have permitted defendants to amend their affirmative defenses at any time before it became “too late” for plaintiff to correct her error. However, there is no indication that the trial court or the parties believed that any amendment transpired. Defendants’ reliance on Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1; 614 NW2d 169 (2000), is misplaced, because in that case, the trial court explicitly “recognized that [the] defendant needed the court’s permission to assert the affirmative defense, and then stated, ‘Let’s go ahead’ ” and heard the motion on the basis of that defense. Id. at 9. Consequently, the trial court in Cole engaged in overt action that constructively granted leave to amend. We do not believe that in this case the trial court’s actions should be justified after the fact because of the theoretical existence of an alternative course of action the trial court could have taken but did not in any way suggest that it actually did. In any event, amendment of defendants’ affirmative defenses after the expiration of the limitations period unambiguously worked to the prejudice of the other party and therefore would not have been permissible. MCR 2.118(A)(2).
However, defendants also argue that even if their affirmative defenses were insufficient, summary disposition was nevertheless warranted because, ultimately,
In Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No. 274079), the plaintiffs failed to file an affidavit of merit with their medical malpractice complaint. The defendants’ affirmative defenses included statements that the plaintiffs’ claim was “ ‘barred by the statute of limitations as it applies to malpractice actions’ ” and that the plaintiffs’ affidavit of merit “ ‘fail[ed] to meet the requirements of MCL §600.2912a; MCL §600.2912d, and other provisions as set forth in the Tort Reform Acts of 1993 and 1995.’ ” The defendants moved for summary disposition after the expiration of the limitations period, arguing that the plaintiffs had failed to file affidavits of merit with the complaint. The Plaintiffs responded that the defendants had waived any such defense because the defendants had not stated the facts forming the basis for that affirmative defense in compliance with MCR 2.111(F). The trial court agreed and concluded that if strict compliance was required of the plaintiffs, it was also required of the defendants, and so it denied the motion for summary disposition.
A majority of a panel of this Court affirmed. However, in a dissenting opinion, Judge JANSEN stated,
I fully acknowledge that a defendant must raise certain defenses in its first responsive pleading, and that a failure to do so may result in the waiver of those defenses. See MCR 2.111(F)(2); MCR 2.111(F)(3). However, I conclude that [the] defendants were never required to raise or plead*219 their asserted defenses in the first instance because this medical malpractice action was never properly commenced.
[The] [plaintiffs’ claims arose, at the latest, at the time of the myocardial infarction in March 2003. “[T]he mere tendering of a complaint without the required affidavit of merit is insufficient to commence [a medical malpractice] lawsuit,” and therefore does not toll the two-year period of limitations. Scarsella v Pollak, 461 Mich 547, 549-550; 607 NW2d 711 (2000). In this case, plaintiffs wholly omitted to file the requisite affidavits of merit, and their complaint of September 2004 was therefore insufficient to toll the limitations period. Id. Regardless whether [the] defendants properly raised and preserved the statute-of-limitations and affidavit-of-merit defenses in their first responsive pleading, the period of limitations was not tolled by [the] plaintiffs’ complaint, and [the] plaintiffs’ claims were already time-barred at the time of the circuit court’s ruling. Id. at 553. I would reverse and remand for dismissal with prejudice of [the] plaintiffs’ claims. MCR 2.116(C)(7); Scarsella, [461 Mich] at 551-552.
On appeal, our Supreme Court reversed “for the reasons stated in the Court of Appeals dissenting opinion.” Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007). Orders from our Supreme Court constitute binding precedent to the extent they can be understood as having a holding based on discernible facts and reasoning. Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002). Our Supreme Court’s order of reversal in Auslander can be understood as adopting the reasoning of the dissenting opinion from this Court in that case, and that dissent consequently constitutes binding precedent despite originally having been unpublished and not binding pursuant to MCR 7.215(C)(1).
This conclusion appears to do violence to what otherwise appears to be the plain and unambiguous requirements of the court rule. It is especially concerning
Pursuant to MCL 600.2912b, a medical malpractice action cannot be commenced unless the plaintiff first provides to health professional or health facility defendants a written notice of intent to commence suit and then waits 182 days before filing the complaint. Burton, 471 Mich at 751. “MCL 600.5856(d) provides that the two-year period of limitations for medical malpractice actions is tolled during the notice period if notice is given in compliance with MCL 600.2912b.” Id. at 752. Generally, the statute of limitations is then further tolled pursuant to MCL 600.5856(a) by the filing of a complaint and affidavit of merit. Kirkaldy v Rim, 478 Mich 581, 585; 734 NW2d 201 (2007). Pursuant to Burton, 471 Mich at 751-756, a medical malpractice complaint filed prior to the expiration of the
Burton relied to some extent on analogous reasoning in Scarsella, wherein the Court had “concluded that the filing of a complaint without the required affidavit of merit was insufficient to commence the lawsuit.” Burton, 471 Mich at 752, citing Scarsella, 461 Mich at 549. The Court in Burton went on to state that “[t]he filing of a complaint before the expiration of the statutorily mandated notice period is no more effective to commence a lawsuit than the filing of a complaint without the required affidavit of merit.” Burton, 471 Mich at 754. The Court further relied on Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 66-68; 642 NW2d 663 (2002), which held that complete compliance with MCL 600.2912b was mandatory before the limitations period would be tolled. Burton, 471 Mich at 753.
As applied to the instant case, because plaintiffs prematurely filed complaint did not toll the running of the limitations period, that period eventually expired. Defendants moved for summary disposition after that expiration. However, because the limitations period had expired, plaintiff could not refile and the dismissal was with prejudice.
Plaintiff argues that the relevant portion of Roberts on which Burton relied was subsequently overruled when our Supreme Court later concluded that, on the basis of subsequent legislative changes, a defective notice of intent would toll the running of the statute of limitations. Bush v Shabahang, 484 Mich 156, 170 n 26;
Plaintiff contends that because Burton analogized a prematurely filed complaint to a defective notice of intent, which at the time was held not to toll the limitations period but now is deemed to toll the limitations period, a prematurely filed complaint should likewise be deemed to toll the limitations period, at least until such time as it is successfully challenged. See, by analogy, Kirkaldy, 478 Mich at 586 (holding that a defective affidavit of merit tolls the limitations period until it is successfully challenged). We are unaware of any readily apparent reason why a defective affidavit of merit or a defective notice of intent are sufficient to toll a limitations period but a defective complaint is not. Furthermore, it appears to us that our Supreme Court rejected the plain language of MCL 600.5856(a) in Burton, 471 Mich at 752-754. MCL 600.5856(a) explicitly states that the limitations period is tolled, “[A]t the time the complaint is filed,” not “when the claim is commenced” or “when the complaint is properly and/or timely filed.” A prematurely filed complaint could not, in the words of MCL 600.2912b, “commence an action;” however, nothing in MCL 600.2912b prohibits filing a complaint, and nothing in MCL 600.5856(a) concerns itself with the propriety of the complaint or whether the action has actually been
However, regardless of our Supreme Court’s reasoning, Burton has not been overturned. Even if the underpinnings of the relevant holding have been eviscerated, the case itself remains binding. This Court has no power or authority to disregard the plain holding of a decision by our Supreme Court merely because that holding no longer seems valid; only our Supreme Court can do that. Mitchell, 428 Mich at 369-371. Moreover, citing to Burton, our Supreme Court recently reaffirmed that “when a plaintiff fails to strictly comply with the notice waiting period under MCL 600.2912b, his or her prematurely filed complaint fails to commence an action that tolls the statute of limitations.” Driver v Naini, 490 Mich 239, 256; 802 NW2d 311 (2011).
Nevertheless, plaintiff argues that she should be permitted to amend her complaint pursuant to precedent from this Court. In Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009), the plaintiff inadvertently filed her complaint and affidavit of merit 181 days after serving her notice of intent, rather than the required 182 days. The record in that case revealed that the plaintiffs counsel had done so in good faith and purely by accident, and the prematurity had absolutely no
In Driver, 490 Mich at 254, our Supreme Court explained that “MCL 600.2301 only applies to actions or proceedings that are pending.” Although an untimely complaint cannot commence an action, the proceedings here are underway. In Driver, the plaintiffs were barred from the initial step of the proceedings of filing the notice of intent, whereas here, there is no dispute that the notice of intent was proper. The dissent apparently concludes that MCL 600.2301 cannot apply because no action was underway. We disagree: MCL 600.2301 cannot be used to create a filing out of whole cloth, but no such bootstrapping would occur here, where all the requisite documents actually exist. In any event, MCL 600.2301 merely affords plaintiff the opportunity to make an argument. We see no value in attempting, on this record, to determine whether defendants’ substantial rights would truly be invaded if they are ultimately required to address the merits of the claim instead of relying on legal technicalities to avoid doing so. As we discuss, whether amendment would further the inter
Notably, the applicability of Zwiers to the instant case is unclear. Most glaringly, the plaintiff in Zwiers filed an action that was prematurely filed by a single day, whereas here, the prematurity was 70 days. Defendants correctly point out that plaintiffs complaint was too soon even for the shortened 154-day period afforded to medical malpractice defendants to provide a written response to the plaintiff. MCL 600.2912b(7). A plaintiff may commence suit immediately upon the expiration of those 154 days if the defendant has failed to provide that written response. MCL 600.2912b(8). It is not clear from the record whether any of the defendants filed such a response; nevertheless, plaintiffs prematurity in this case is vastly more egregious than that in Zwiers. Again, the present record simply does not provide us with any basis for evaluating whether defendants’ substantial rights were actually affected by the premature filing. See Zwiers, 286 Mich App at 50-51.
The record likewise does not show whether plaintiff made a good-faith attempt to comply with MCL 600.2912b. See Bush, 484 Mich at 178. It can reasonably be presumed that very few attorneys would deliberately scuttle a client’s case. Furthermore, there is no indication in the record that plaintiffs attorney filed the complaint prematurely on the belief that doing so would achieve some manner of tactical advantage. In short, the record in Zwiers showed good faith on the part of the plaintiff; the record here is silent on that point — one way or the other.
We conclude that if a complaint that is filed one day prematurely may be amended pursuant to MCL 600.2301, then it is not possible to foreclose out of hand the possibility that an action that is filed prematurely
In interpreting a predecessor statute to MCL 600.2301, our Supreme Court explained that the purpose of the statute was “to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties,” that the statute should be construed liberally, and that the “right to permit amendments, in accordance with the statute, is vested in the sound judgment and discretion of the trial court.” M M Gantz Co v Alexander, 258 Mich 695, 697; 242 NW 813 (1932). The failure to exercise discretion when called on to do so is inherently an abuse of discretion. People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559 (1990). On this record, we are unable to determine whether plaintiff can make the requisite showing, and we decline to make any presumptions. We therefore conclude that on the basis of both Zwiers and the purpose behind MCL 600.2301, the trial court erred by failing to at least consider the possibility of allowing plaintiff to amend her complaint and afford plaintiff the opportunity to present an argument.
The trial court correctly determined that, all other matters being equal, dismissal with prejudice was the only possible outcome of this matter. However, plaintiff
As the dissent notes, and as we discuss later, our Supreme Court in Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007), stated its approval of a dissent in an unpublished opinion of this Court and held that a defendant may raise the MCL 600.2912b notice-period defense, irrespective of their failure to comply with the plain and unambiguous requirements of MCR 2.111, because MCR 2.111 does not apply if the
As noted, it is apparently standard practice to file borderline-nonsensical boilerplate lists of possible affirmative defenses with little, if any, anticipation that most of them have the slightest factual basis. Deeming them adequate unless challenged would unleash a wasteful avalanche of equally pro forma challenges and, quite possibly, sanctions. Furthermore, it may be impossible for a party to determine which bare assertions of affirmative defenses might have any merit in the absence of meaningful supporting facts offered for any of them.
Driver involved an untimely notice of intent given to a nonparty the plaintiffs sought to add as a party after the limitations period had expired; the plaintiffs sought to amend the notice to date back to the timely notice they had provided to the other defendants. Our Supreme Court held that the plaintiffs could not do so because the claim was already time-barred as to the nonparty the plaintiffs sought to add.
Obviously, defendants are equally entitled to present their own arguments and, as applicable, evidence on this matter.
Dissenting Opinion
(dissenting). I respectfully dissent from the majority opinion, which reverses the trial court’s order granting summary disposition in favor of defendants and remands for further proceedings on the basis of Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009), and MCL 600.2301. Because Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), and Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011), continue to be binding on this Court, I would affirm.
i
MCL 600.2912b(l) “unequivocally provides” that a plaintiff “ ‘shall not’ commence an action alleging medical malpractice . . . until the expiration of the statutory notice period.” Burton, 471 Mich at 752. As the majority recognizes, even though a defective notice of intent (NOI) tolls the applicable limitations period, Bush v
Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiffs failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b. In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.
Plaintiff filed her complaint and affidavit of merit in this case only 112 days after serving the notices of intent on defendants in contravention of MCL 600.2912b(l), which requires that a plaintiff wait at least 182 days before “commencing]” an action.
Further, I disagree with the majority’s conclusion that defendants waived, or even could have waived, an affirmative defense that plaintiffs complaint was prematurely filed. In its order in Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007), the Supreme Court concluded that a defendant can still raise the issue of a plaintiff failing to comply with MCL 600.2912b irre
ii
The majority also reverses and remands on the basis of this Court’s ruling in Zwiers, 286 Mich App 38 and MCL 600.2301. I disagree with this disposition. Although not a medical malpractice statute, MCL 600.2301 does apply to medical malpractice actions because it applies where “any action or proceeding is pending.” (Emphasis added.) The statute provides in full:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in 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.
Thus, “MCL 600.2301 only applies to actions or proceedings that are pending.” Driver, 490 Mich at 254. The Supreme Court concluded in Driver that MCL 600.2301 was inapplicable under the facts of that case because, since “an NOI is part of a medical malpractice ‘proceeding’ ” and the applicable limitations period had already expired by the time the defendant was served with the NOI, there was no existing “proceeding” in that case. Id. The Court noted that the NOI could not
Applying the Supreme Court’s analysis in Driver to the facts in this case, plaintiffs complaint cannot be resurrected under MCL 600.2301. I agree that at the time plaintiff properly served NOIs to defendants, a proceeding was pending to which MCL 600.2301 would have been applicable. However, the limitations period expired without commencement of a medical malpractice action because plaintiffs complaint was filed prematurely. Since “ ‘[a]n action is not “pending” if it cannot be [or was not] “commenced,” ’ ” id., there was no action pending in the trial court to which MCL 600.2301 could be retroactively applied. Moreover, retroactive application of MCL 600.2301 would affect defendant’s substantial rights because defendant would be “denied its right to a statute-of-limitations defense,” which is plainly contrary to, and not in furtherance of, the Legislature’s intent in enacting MCL 600.2912b. Id. at 255.
In this regard, this Court’s holding in Zwiers, 286 Mich App 38, is significantly undermined by our Supreme Court’s later decision in Driver. In Zwiers, the plaintiff timely filed her NOI but had inadvertently filed her complaint 181 days after serving the NOIs on the defendants instead of the statutorily prescribed 182 days. Id. at 39. The trial court granted the defendants’ motion for summary disposition on the basis that the complaint failed to commence the action and toll the
Zwiers was undermined by the Supreme Court’s subsequent decision in Driver for several reasons. First, because the plaintiff in Zwiers prematurely filed her complaint, no action was commenced by the plaintiff before the limitations period expired, and therefore, no action was ever pending such that the trial court would be authorized under MCL 600.2301 to permit an amendment of the complaint by which plaintiff attempted to commence the action. Driver, 490 Mich at 254. Second, Driver’s holding, that a statute of limitations defense is a substantial right to which a defendant is entitled, contradicts the finding in Zwiers that no substantial right of the defendants was affected by permitting the filing of an amended complaint pursuant to MCL 600.2301.
For the reasons stated herein, I respectfully dissent and would affirm the trial court’s order granting summary disposition in favor of defendants.
Certain conditions can reduce this waiting period. See, e.g., MCL 600.2912b(3) and (7).
Thus, even assuming the expiration of the limitations period did not also extinguish the proceeding which commenced with the filing of the NOI, any amendment of plaintiffs complaint in an attempt to retroactively meet the requisite limitations period would also affect defendant’s substantial rights by depriving it of a valid statute of limitations defense, such that MCL 600.2301 would be inapplicable.
Notably, unlike the Supreme Court in Driver, the Zwiers Court did not address the impact of the defendants’ right to a statute of limitations defense on the trial court’s ability to utilize MCL 600.2301 to resurrect the plaintiffs cause of action; instead, it only focused on the fact that “[t]here was no evidence of interrupted settlement negotiations on the date of filingf] and [that the] defendants had the time and opportunity to investigate plaintiffs allegations as evidenced by defendants’ response to plaintiffs NOI under MCL 600.2912b(7).” Zwiers, 286 Mich App at 51.