*1 v Nadell Walters WALTERS NADELL 25, Docket 131479. No. Decided June 2008. brought
Robert
an
in the
action
Jackson Circuit Court
Nadell,
against
seeking damages
Nathan
related to an automobile
plaintiff
accident. The
was unable
serve the defendant
before
original
expired
both his
and his second summons
because the
serving
military.
period
was
defendant
The
of limitations
expired
plaintiff
attempting
perfect
while the
service of
process.
plaintiff subsequently
complaint
The
filed a second
defendant, alleging
the same claims as those in his first
complaint.
summons,
After
defendant was served with the
he
sought
prejudice
grounds.
dismissal with
on statute-of-limitations
plaintiff argued
The
of limitations was tolled
pursuant
court,
Nelson, J.,
to MCL 600.5853. The
Charles A.
granted
summary disposition
the defendant
and dismissed the
plaintiffs complaint
prejudice.
plaintiff appealed, argu-
The
ing
526(a),
for the
time
first
that 50 USC
(SCRA),required
of the Servicemembers CivilReliefAct
BJ.,
Appeals,
reversal. The Court of
and Zahra and
Wilder,
Davis,
JJ., affirmed, concluding
tolling provision
that the SCRA
is discre-
tionary
preserved
and that the
had not
the SCRA
issue
appellate
Unpublished opinion per curiam,
review.
issued March
(Docket
263504).
23,
plaintiff sought
Nos. 263503 and
The
appeal.
leave to
opinion per
signed
In an
curiam
Justices
Cavanagh,
granting
in lieu of
leave
Corrigan, Young,
Markman,
Court,
argument,
Supreme
without oral
held:
tolling provision
of the Servicemembers Civil Relief Act is
mandatory,
party may
provision by failing
but a
waive the
to raise
it in the trial court.
unambiguous,
1. The
of the SCRA is
un-
equivocal,
provision,
and unlimited. While the
as amended in
provides
person’s period military
“may
that a
not” be
computing
bringing
included
of limitations for
action,
that,
statute,
phrase
it is clear
in the context of the
“may
meaning
import
phrase
not” has the same
as the
“shall
statute,
predecessor
provision clearly
not” had in the
and the
Moblo & the defendant. plaintiff is whether CURIAM. The issue this case
PER
of the Service-
himself of the
may avail
(SCRA)1
he failed
Relief Act
when
members Civil
sum-
to a motion for
response
that
raise
he hold that
by defendant. We
mary disposition
MCR
appeal,
leave
granting
not.
In lieu
of the Court of
7.302(G)(1),
judgment
affirm the
we
reason. We vacate
for a different
Appeals, but
526(a).
I. FACTSAND PROCEDURALHISTORY Plaintiff, Robert Walters, was involved an automo- bile accident defendant, Nadell, Nathan on May 11, 2001. Plaintiff filed a complaint 26, on February 2004, that alleged that defendant negligent.2 Plain- tiff was unable to serve defendant before original his and second expired summonses because defendant was serving in military. of limitations for expired action while he was attempting to perfect service of process.3
On 21,2004, October second, filed a separate complaint against defendant, raising the same claims against defendant as those in the first complaint. Plain- tiff was issued a summons for the second action that on expired January 20, 2005.4 Defendant was served with the summons and complaint on December 2004, at Fort Benning, Georgia. Defendant filed a part action, plaintiff As of that declaratory judgment also filed a action the insurer of the operating automobile that he was at the time of the longer accident. party proceed The insurer is no to these ings. 600.5805(9), Pursuant 600.5805(10), former MCL now MCL expired May 12, of limitations 2004. sought Plaintiff also and obtained an amendment to the second *4 summons he was issued in the first action. The second summons was expire January 20, amended to on 2005. Defendant was served with the summons, prevailed amended summary disposition motion, but he on a arguing that, 2.102(D), under authority MCR the court did not have amend the appealed second summons. Plaintiff has not that decision. 381 v Nadell Walters Opinion the Court of prejudice ground with seeking dismissal motion expired plain- limitations had before period of that Plaintiff for the second action. complaint tiff filed his motion, arguing to defendant’s responded to MCL pursuant limitations was tolled period granted summary disposition court 600.5853. The trial dismissing and entered an order in favor of defendant complaint prejudice. plaintiffs of limita- arguing appealed, Plaintiff Plaintiff also tolled under MCL 600.5853. tions was time, that the provisions for the first argued, The Court of the SCRA reversal. required court, grounds, albeit on different affirmed the trial argument, holding SCRA declined to address and that unpreserved appellate it was review discretionary.5 the SCRA Court, arguing in this appeal Plaintiff leave to sought because the SCRA timely that his claims were only of limitations. tolled
II. STANDARDOF REVIEW
summary
grant
review de novo the
or denial
We
requires
interpret provi-
This case
us to
disposition.6
is a
Statutory interpretation
ques-
of the SCRA.
sions
law,
interpret-
de novo.7 When
tion of
which we review
“
statute,
give
task is to
effect
ing
‘[o]ur
a federal
”8
start,
course,
so,
“[w]e
. . . .’ To do
will
5
Nadell,
per
unpublished opinion
of the Court of
curiam
(Docket
263504),
23,2006
pp 6-7.
Appeals,
Nos. 263503 and
issued March
(1999).
109, 118;
Rozwood, Mich
382 377 Opinion of the Court text,” statutory “[u]nless otherwise de- fined, terms are statutory generally in interpreted accordance ordinary meaning.”9 with their “When the unambiguous,.. words of statute are in- ‘judicial . ”10 quiry complete.’ THE III. SCRA’S TOLLING PROVISION IS MANDATORY argues Plaintiff the Court of Appeals by erred not addressing his SCRA argument because the tolling provision of the mandatory SCRA is and cannot be waived. We first address contention that the tolling provision of the SCRA is mandatory.
The former Soldiers’ and Sailors’ Civil Relief Act of 1940 significant underwent amendment in 2003 when 11 Congress enacted the SCRA. Before the amendment, former 50 USC Appendix 525 provided part: period military
The service shall not be included in computing any period by any now or hereafter to be limited law, regulation, bringing any or order for the action or proceeding any by against any person court... or military [Emphasis service .... added.] The substantive equivalent of this provision is now 50 USC Appendix 526(a), provides which part: relevant servicemember’s
not
computing any
be included in
by law,
limited
regulation,
bringing
or order for the
action or
proceeding
in a
court...
the servicemem-
[Emphasis
ber....
added.]
Burton,
BP America
Production Co v
84, _;
638,
549 US
127 S Ct
(2006).
643;
494,
166 L Ed 2d
Germain,
Connecticut Nat’l
249, 254;
Bank v
1146;
503 US
112 S Ct
States,
(1992), quoting
Rubin v United
117 L Ed 2d
449 US
101 S Ct
The Court of erred its conclusion that amendment rendered the discretion- ary. tolling provision, Appen- We hold that 526(a), mandatory. dix We must next consider the act nonetheless waiver of the permits whether mandatory tolling provision. A
IV A PLAINTIFF WITH CLAIMS AGAINST
SERVICEMEMBER MAY
WAIVE THE SCRA’S MANDATORY TOLLING PROVISION
may
clear that the servicemember
The SCRA makes
of the act. 50 USC
protections
waive
Aniskoff,
Conroy
517(a) provides
may
any
“[a]
servicemember
and
rights
protections provided by
of the
this Act.”1450
517(b)
requires
USC
written
waivers
certain actions that arise from disputes involving cer-
instruments,15
legal
tain
but
in all other actions the
rights
protections
and
by any
act
be waived
other means.16
recognized
Michigan
have
We
distinction in
law between the terms
Hosp,
“waiver”
“forfeiture.” See Roberts v Mecosta Co Gen
Mich
57, 69-70;
pleading. (Emphasis incidentally, is consistent with our own 2.111(F) 2.116(D)(1). procedure. See, e.g., rules of civil MCR generally suspend rights SCRA serves to and liabilities that would be 502(2) 512(b). through litigation. enforced civil See 50 USC *7 Indeed, period limitations, aof which determines when a may brought, distinctly Thus, civil action procedure. a matter of civil Congress we believe that used the term “waive” in the SCRA in the commonly procedure, permitting manner that it is used civil forfeiture Accordingly, as well as waiver. we use the term “waiver” in a manner throughout consistent with the federal statute and court rules this opinion. 517(b). Appendix 50 USC provides Appendix entirety: in its (a) general. may rights In servicemember of the —A protections provided by and [50 this Act USC 596],
through Any applies such waiver that to an action listed (b) only writing subsection of this section is effective if it inis separate obligation is executed as an instrument from the or liability applies. permits to which it In the case of a waiver that an 2008] v Nadell Opinion Court is not limited to Waiver under the SCRA servicemem- out the of the SCRA in purpose bers. set USC 502:
(1) for, strengthen, expedite provide the national through protection defense extended this Act to service- persons of the United States to enable such members Os), only action described in subsection the waiver is effective if agreement parties pursuant a made to written during period military executed or after the servicemember’s agreement specify legal service. The written shall instrument and, applies if a which the waiver the servicemember is not instrument, party to that the servicemember concerned. (b) requiring writing. requirement Actions waivers in —The (a) applies following: subsection for a written waiver
(1) modification, termination, The or cancellation of— (A) contract, lease, bailment; a or or (B) obligation by mortgage, trust, deed, lien, secured or security mortgage. other in the nature of a (2) retention, foreclosure, sale, forfeiture, repossession, or taking possession property that—
(A) security any obligation; or (B) contract, lease, purchased or received under a or bailment. (c) display rights Any Prominent of certain contract waivers.— writing right protection provided by
waiver in of a or this Act that contract, lease, applies legal to a or similar instrument must be in point type. at least 12 (d) Coverage periods pur- after orders received.—For the poses of this section— (1) person [50 USC to whom section servicemember; applies shall be considered to be a (2) respect person specified to such a (a) (b), be, of section 106 shall be subsection as the case considered to be a service. *8 Mich 377 Opinion op the Court energy their entire to the defense needs of
devote Nation; and
(2) temporary suspension judicial provide to for the may proceedings and transactions that and administrative adversely rights during affect the civil servicemembers military their service. defense,
Thus, strengthen in order to the national to Congress temporarily enacted SCRA free service- participating litigation. members from the burden of periods of limitations in actions for, strengthen, to “provide servicemembers serves expedite the national defense” “the protecting civil rights during of servicemembers their service.” plaintiff suing The benefits of the merely protec- servicemember are incidental tions that servicemembers. provision provides
Congress protect enacted the SCRA as a shield to having respond litigation servicemembers from service, manifestly while in active but indicated that the may Here, SCRA’s be waived.17 protections plaintiff is seeking to transform SCRA into a sword to preserve his having timely lawsuit without invoked its provi- sions. It incongruent purpose would be with the of the permit SCRA to a servicemember rights to waive the act, protections but bar a nonservicemember benefits, waiving from incidental and thereby provide, exception, without incidental benefits to a nonservice- express purpose member. The of the act is inconsistent providing protections more to a nonservicemem- than a ber servicemember. Because the purpose servicemembers, act protect is to we conclude that did prohibit not intend to waiver a nonser- Therefore, vicemember. hold the mandatory we 517(a) (“A See 50 USC servicemember Act.”). rights protections provided by v Nadell Opinion of the Court *9 526(a) tolling provision of 50 USC Appendix may be by waived a plaintiff asserting a claim a service- during member servicemember’s service.18 The final question we must resolve is whether waived the limitations this case by failing to raise the tolling provision in the trial court. V PLAINTIFF WAIVEDTHE SCRA’S
MANDATORYTOLLING PROVISION
Michigan generally
follows
“raise or waive” rule
of appellate review.19Under
jurisprudence,
our
liti-
a
gant must
preserve
issue for appellate
review
raising it in the trial court.20 Although this Court has
inherent
to
power
review an issue not
raised
the trial
prevent
court
to
miscarriage
a
of justice,21 generally
a“failure
timely
to
raise an issue waives review of that
issue
appeal.”22
on
dissent,
In his
the Chief Justice asserts that we have read a waiver
provision for nonservicemembers into the SCRA.Post at 395. Our discussion
merely
rights
establishes that
protec
did not intend that the
and
tions of the SCRA would be unwaivable mandates. The Chief Justice
implicitly recognizes
that,
acknowledging
this to be true
absent a
miscarriage
justice, plaintiff
tolling pursuant
waived
to the SCRA
Post
397, citing
Jacobs,
(1987).
Napier
222, 232-233;
429 Mich
People
nature of the adversarial
argued
issues raised and
review to those
limiting appellate
waived,
all other issues
court,
holding
in the trial
their
to raise and frame
require litigants
courts
appellate
may respond
opponents
at a time when their
arguments
the unten-
also avoids
factually.23
practice
them
This
to
litigant
an unsuccessful
permitting
result of
able
proved
decisions that
avoiding its tactical
prevail by
not remain silent
Generally, party may
unsuccessful.24
court,
an issue that was
only
prevail
trial
Trial courts
the trial court’s attention.25
not called to
litigants;
the research assistants of the
are not
argu-
duty
fully present
legal
their
parties have
*10
their dispute.
the court for its resolution of
ments to
11, 2001,
May
of action accrued on
Plaintiffs cause
21,
on October
complaint
filed the instant
plaintiff
for
tolling,
period
of limitations
2004. Without
12, 2004. Defendant
expired May
claim
plaintiffs
plaintiffs complaint
prejudice,
moved to dismiss
after the
complaint
that
had filed his
arguing
plaintiff
undisputed
It
expired.
of limitations
of the SCRA
did not raise the
plaintiff
Thus,
motion.
under our
response
to defendant’s
rule,
undisputed
plaintiff
“raise or waive”
it is
tolling provision.
waived the
cannot
argued
It could be
However,
mandatory.
it is
as dis-
be waived because
cussed,
by a
prohibit
did not intend to
waiver
See id.
228-229.
24Id. at 228.
(“Parties
(1891)
Folkerts,
Kinney
A shall not or maintain an action to damages injuries recover persons property unless, after the plaintiff claim first accrued to the or to someone through claims, plaintiff whom the the action is com menced within prescribed by of time this secti on.[26] It long has been the rule Michigan that a defendant may waive a statute of limitations defense failing to raise it the trial court.27 Under the Michigan Court Rules, a defendant waives a statute of limitations defense by failing to raise it his responsive first pleading.28 The defendant may cure his failure to raise the defense in his first responsive pleading by amending the pleading,29 but the must, defendant in any event, raise the defense in the trial court.
We hold that a tolling provision may just
waived
as
a statute of limitations defense may be waived. Consis-
600.5805(1)
added).
(emphasis
MCL
Superintendents
See Moden v
Co,
the Poor Van Buren
183 Mich
120, 125-126;
(1914);
Roberts,
supra
NW 1064
(noting
see also
at 67
effectively
that “a
any objections
defendant
could
‘waive’
600.5856(d)
requirements
fulfillment of the
by] failfing]
[MCL
pertinent
invoke the
statute of limitations
after a
files
suit____”);
Detroit,
(1982)
Lothian v
390 Opinion of the Court not review of issues appellate rule against tent with tolling waive the court, may a plaintiff trial raised raise it failing to limitations of the trial court.30 that reach in other courts of decisions are aware
We not decisions are conclusion,31 but those opposite Plaintiff persuasive.32 not find them and we do binding, court, but in the trial argument raise his SCRA failed to to defeat it as a sword belatedly to use now seeks ren- effect of perverse have the This would dismissal. when the amenable to suit dering the servicemember court. invoked in the trial never tolling provision was tolling waived the Therefore, has we hold that did not SCRA, and the Court of the SCRA merits of addressing the err not argument.
VI. CONCLUSION SCRA, The A self-executing. litigant 526(a), mandatory but not has a respon- servicemember a claim pursuing 30 permit of statute of limitations we waiver note that because We periods defenses, of limitations does not those same waiver of permit appellate “miscarriage justice” interven present that would Napier, supra at 233. tion. See (CA 4, 1975); Birch, Kenney v See, e.g., F2d 214 Ricard v Lines, Inc, App Ill 3d 286 NE2d Churchill Truck Corp, Mich 677 NW2d Motors See Abela Gen (2004) that, “[although (holding federal court decisions lower courts”). Ricard, supra binding In they on state persuasive, are not held that Appeals for the Fourth Circuit the United States Court “orderly because rules could not be waived the SCRA justice.” require fundamental procedure of the rules of do not sacrifice (1) principal holding rationale for our inconsistent with Ricard rule, (2) rule, suggests exception that would consume waiver (3) permitting precedent waiver of a statute inconsistent with our holding. Thus, not follow its defense. we do limitations *12 V NADELL WALTERS J., and C.J. Opinions Weaver, Taylor, sibility bring to the attention the court if he to trial desires avail himself its Plaintiff the tolling provision benefits. failed raise court; in the SCRA. the trial therefore he has his waived right provision grounds to raise the as on relief appeal. and
Affirmed part part. vacated and JJ., con- Cavanagh, Corrigan, Young, Markman, curred.
WEAVER, J. I (concurring). concur the result of the majority opinion the affirming refusal of the Court Appeals argument address the concerning tolling the provision of Servicemembers Civil Relief Act,1 because the plaintiff argument waived that at trial court level.
TAYLOR, C.J. (concurring part and dissenting part). At issue in this tolling case whether provision of the Servicemembers Civil Relief Act (SCRA), 526(a), USC tolls limitations for a plaintiffs cause of action when the plaintiff, nonservicemember, failed to raise the tolling the trial-court level. The of Appeals Court declined to address this it issue because determined event, issue unpreserved that, in any tolling provision was A discretionary. majority this Court holds that the provision mandatory, not discretionary, but affirms on the different ground that plaintiff waived the tolling provision when he failed to raise it at the trial-court level.
Although I agree with the majority certain portions of the SCRA were intended benefit both 526(a). 50 USC Mich Opinion by Taylor, C.J. nonservicemembers, I agree
servicemembers I dis- mandatory, SCRA’s provi- can waive agree that a nonservicemember Court of sion. than affirm the Rather does, I reverse majority as the would ground, different *13 of Appeals the Court part judgment the of the of to consider case to Court remand this should whether, miscarriage justice, of it to avoid court so that remand this case circuit defendant’s complete concerning can record develop rel- military any other matters periods of service the of limita- evant to the SCRA tolled whether tions to claim. applicable SCRA, The of the as set forth in 50 USC purposes 502, are: (1) for, expedite provide strengthen, and national to the through protection by this defense extended Act to service- persons enable to members of the United States to such energy devote their entire to the defense needs Nation; and
(2) suspension judicial provide temporary for the of to proceedings may and administrative and transactions that during adversely rights the civil servicemembers affect military [Emphasis added.] their service. in USC 502 Despite the clear indication 50 servicemembers, benefit the SCRA intended to nonservicemembers, and its reference several lack of to courts that the was intended to benefit have held SCRA And, and nonservicemembers alike.1 servicemembers 1 1972) (“The (CA Porter, 452, 6, Ray [SCRA] v 464 F2d was adopted protect rights by the the of individuals the military States, protect rights of the United and also to service having against causes of of the Armed individuals actions members Kahn, States.”), among cases, citing, Forces the United other Stewart (11 Wall) 493; (1871), US 20 L Ed Revenue Internal Wolf (CA (CA Comm’r, Birch, 214, 1959); 264 F2d 82 Ricard v F2d WALTERSV NADELL by Opinion Taylok, C.J. 526(a) indeed, appears suggest that this be the may case: of a servicemember’s law, computing any period
not included in limited regulation, bringing or order or action proceeding a court... the servicemem- [Emphasis added.] ber....
By phrase “by its use or against,” implies at least an incidental benefit of tolling to nonservicemembers. have Several courts held that this automatic, tolling provision is means which that all that must be shown in order for apply while the period of limitations is or has running expired one party case, the armed service. In this the trial court apprised time plaintiff sought for the extension summons that the reason plaintiff was unable to serve defendant was because defendant was For service. courts that adhere to the automatic tolling, that, moment, this would mean at that *14 tolling automatic provision was activated. issue here is whether to Michigan adheres the automatic- tolling doctrine. 1975) (“[T]he 4, parallel purpose protect rights [is] of the Act to the having against individuals causes of action members of the armed Inc, Co, 716, (CA 4, 1993) (stating forces In AHre Robins 996 F2d 720 tolling that the benefits the “inure mechanism both to personnel rights against military personnel”); to those and with of action Lines, Inc,
Kenney 983, 993; App v Churchill Truck 6 Ill 3d 286 619 NE2d (1972) (“The serviceman, merely act is not restrictive to the since it ‘any any proceeding to addresses itself action or court... any person military ”); Ludwig Anspaugh, 269, service.’ v 785 SW2d (“Kits 1990) (Mo, purpose only protect rights 271 is not to the citizens serving having persons in the armed forces also but those of causes of service.”). against persons military action 2 456; Ray, Ricard, 217; Co, Inc, supra supra at at re AH In Robins 993, supra 718; Kenney, supra quoting at at Illinois Nat’l Bank of Gwinn, Springfield 345, 354; (1945); Ludwig, 390 Ill 61 249 NE2d supra at 271. Mich 377 Opinion Taylor, C.J. tolling provi- held that the courts have also
Various mandatory subject judicial and not discretion.3 sion is mandatory, the recognize court rules Even our own tolling provision by SCRA’s nature of the automatic judg- a granting a for default requiring prerequisite as must be nonmilitary ment affidavit has failed filed in actions in which defendant 2.603(C). MCR Because the appear. statutory
automatic, preclusive and of state mandatory, limitations, have recognized other courts periods of first on which appeal, it can raised for the time jurisdictional akin in some sense to the treatment explicit claims, although not discussed those terms.4 mandatory nature of 50 USC Notwithstanding the 517(a) 526(a), Appendix expressly “ waive provides servicemember Act,” this rights protections provided by and which no necessarily tolling There is provision. includes respect similar to nonservicemembers. terms, 517, by plain USC its Although the SCRA contains applies only to servicemembers and nonservicemembers, no waiver similar right majority here extends provision to nonservicemembers. statute, major- effecting
In this “addition” to the ity, congruency, relies citing unconvincingly (which SCRA does not even statutory purpose of the nonservicemembers) statute mention Co, Inc, Ricard, 216; Ray, 455-456; supra supra re AH at at In Robins Bank, 993, supra Kenney, supra quoting at Nat’l at Illinois 354; Ludwig, Conroy Aniskoff, supra supra 271. Cf. US at (1993) (“The statutory 514-515; L Ed 113 S Ct 2d 229 unambiguous, unequivo [former command in USC unlimited,” cal, “supports provisions a review of other the act *15 says.”). § the meant what 525 conclusion 4 Ricard, supra 216; Kenney, supra at at 992-993. Nadell Opinionby Taylor, C.J. (which provision) itself contains no waiver to conclude the that a nonservicemember entitlement This tolling by failing by to raise it. addition this majority puzzling conceptually because Court adding from or strongly language, has forbidden courts Moreover, rights, language to statutes. stat- as the this majority ute that the uses basis for addition in giving rights neither mentions nonservicemembers respect nor discusses the notion waiver with Moreover, tolling. congruent our sense of what is should trump Legislature’s. majority not Yet the reads tolling provi- waiver the nonservicemember into the sion.
Furthermore, unsettling, do so here is even more in- given Supreme the United States Court has says structed that the statute means what it and that no In Conroy Aniskoff, 511; additions are allowed. 507 US (1993), L Ed 113 S Ct 2d 229 the Court was invited to add words or concepts predecessor In Conroy, statute. It refused to do so. the United States Court considered whether a Supreme servicemember to demonstrate required prejudice being before entitled to under former 50 USC 525. statutory The Court first noted command in period military “that the ‘shall not be included’ in the computation ‘any period now or hereafter law’ unam- provided ”—was and unlimited. In biguous, unequivocal, Id. 514. rejecting argument respondents’ statute —that implicitly showing hardship conditioned on a prejudice provisions because other of the SCRA were expressly showing prejudice conditioned on a —the Court reasoned:
Respondents
correctly
also
remind us to “follow the
whole,
cardinal rule that a statute is to be read as a
see
*16
The United States Supreme
reasoning
Court’s sound
is no different
from this Court’s own standards of
statutory interpretation. We assume that
the Legisla
ture intended what
it plainly expressed. See Liss v
Lewiston-Richards,
Inc,
203, 207;
478 Mich
732 NW2d
(2007).
language
unambigu
We do not read
into an
McIntire,
147, 153;
ous statute. People v
461 Mich
(1999).
Legislature
NW2d 102
And when the
includes
language
statutory
certain
one
but
not
another,
missing language
we do not read the
into the
assumption
statute under
the Legislature
it; rather,
meant
to include
proceed
we
under
assumption that
the Legislature made a deliberate
choice to not include the language. Farrington v Total
Petroleum, Inc,
Finally, although generally this Court does not re- *17 issues, exception view we make an unpreserved necessary miscarriage when review is to avoid a of Jacobs, 222, 232-233; justice. Napier 429 Mich (1987). Given that was not even plaintiff NW2d complaint long as as defendant was in required file service, plaintiff it seems inconceivable that could the benefit tolling simply by filing somehow lose of complaint timely but unable to serve defendant. being Thus, it that a could appears miscarriage justice very of likely occur without I Accordingly, review. would hold plaintiff mandatory, that was unable to waive the auto- tolling 526(a), matic of 50 USC that Appeals the Court of erred in to consider failing plain- argument appeal, tiffs on and that remand is necessary argument. to address this
KELLY,J. {concurring
dissenting
part
part).
I
agree
majority
mandatory
that
(SCRA)1
under the Servicememhers Civil Relief Act
that
provision2
can be waived
both a
servicemember and a
I
agree
nonservicemember.
also
that the nonservicemember
plaintiff
provi-
waived
by failing
sion
this case
to raise it
the trial court.
seq.
50 USC
501 et
526(a).
However, remanding I this matter to the conclude necessary to avoid a mis- possible Court carriage justice. There is some evidence defen- so, evading dant service of If it would be process. unjust him permit liability to avoid the basis failure to raise the compelling trial court. This is a circumstance that permits appellate unpreserved review claim that the SCRA tolled limitations.3 power
This Court has the
to enter
order and
7.316(A)(7).
grant relief as the case
I
requires. MCR
would direct
the Court of Appeals to determine
whether,
miscarriage
justice,
to avoid a
this case
should be remanded to the Jackson Circuit Court. In
court,
develop
complete
could
record
concerning matters
relevant
to whether
the SCRA
tolled the period
applicable
of limitations
to plaintiffs
claim
defendant Nathan Nadell. Such a record
concerning
would include facts
defendant’s
periods
and his alleged
evasion of service of
process.
Napier
Jacobs,
222, 232-233;
See