Forest v. Parmalee, Docket No. 16910--1

Citation60 Mich.App. 401,231 N.W.2d 378
Decision Date23 April 1975
Docket NumberNo. 3,Docket No. 16910--1,3
PartiesGary L. FOREST and James C. Mills, Plaintiffs-Appellants, v. Gerald L. PARMALEE d/b/a G. & L. Construction Company, and Roy C. Davis, Defendants, Gratiot County Board of Road Commissioners, Defendant-Appellee
CourtCourt of Appeal of Michigan (US)

Before ALLEN, P.J., and T. M. BURNS and SMITH, * JJ.

ALLEN, Presiding Judge.

ON REHEARING

We granted rehearing in this matter to consider the propriety of our earlier holding that the two-year statute of limitations was tolled for the period during which the trial court had plaintiff's motion to add the road commission as a party defendant under advisement. 53 Mich.App. 505, 509, 219 N.W.2d 806 (1974). A re-examination of the record and a reconsideration of the applicable principles have led us to conclude that our previous holding was wrong, and that the trial court properly granted accelerated judgment in favor of defendant. GCR 1963, 116.1(5).

At the outset, it should be noted that the trial court did not have plaintiff's motion to add defendant under 'advisement'. Generally, advisement means:

'Consideration; consultation; deliberation; the act of a judge or justice in taking time to consider his judgment before rendering the same; the consultation of a court, after argument by counsel, and before delivering the opinion.' 2A C.J.S. Advisement p. 130. (Footnotes omitted.)

See also 2A Words and Phrases, Advisement, p. 292. Plaintiff's motion to add defendant was filed June 16, 1972. Although the original defendants signed stipulations agreeing to the addition of the county road commission on June 17 and June 21, 1972, these stipulations were not made part of the court file until October 11, 1972. On October 10, 1972, the trial court signed the order adding the county road commission as a defendant, and plaintiff's amended complaint was filed October 27, 1972. The applicable two-year statute of limitations expired August 10, 1972. M.C.L.A. § 691.1411(2); M.S.A. § 3.996(111)(2).

GCR 1963, 118.1 provides that a party has the right to amend his pleading any time before or within 15 days after a responsive pleading has been served, or, if no responsive pleading is required and the action has not been placed upon the court's trial calendar, the party may amend before or within 15 days after his pleading has been served. The rule further states, 'Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party'. GCR 1963, 207 governs the addition of a party by court order, and rule 118 and rule 207 should be read together. Matson v. Soronen, 57 Mich.App. 190, 226 N.W.2d 52 (1974). See also 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d Ed.), Authors' Comments, p. 414. Plaintiff's motion to amend failed to meet the time requirement of GCR 1963, 118.1, and thus plaintiff had to obtain leave of the circuit court for permission to add the county road commission as a defendant.

GCR 1963, 110.2(1) governs the pleading of a motion, and includes the statement 'The motion and notice of the hearing thereof may be combined in the same instrument'. As noted in the committee comment to that rule, existing practice at the time of the enactment of the court rule required a notice of the hearing of the motion, plus the motion itself, to be served on the opposite attorney. Apparently the new rule would allow the combining of both the motion and the written notice of hearing. According to the comment, 'this allows the movant to set forth the notice and follow it with the motion'. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d Ed.), Committee Comment, pp. 177--178. This rule, in conjunction with rules 207 and 118, has led us to conclude that plaintiff had to obtain the court's permission to add the county road commission as a defendant, and to obtain that permission, plaintiff had to file a motion for leave to amend. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d Ed.), Authors' Comments, p. 414. Such leave had to include his motion plus a notice of hearing of that motion. An examination of the lower court record and plaintiff's motion to amend has revealed that plaintiff failed to notice his motion for hearing at the time it was filed in June of 1972.

Generally, a motion must be called to the trial court's attention, and must follow the applicable statutes or the court rules regarding its form and content. 60 C.J.S. Motions and Orders § 10, p. 17. From an examination of the record, it is clear that plaintiff's motion was not called to the trial court's attention until October 10, 1972, more than two months after the expiration of the two-year statute of limitations. Hosner v. Brown, 40 Mich.App. 515, 537--538, 199 N.W.2d 295 (1972), Lv. den., 388 Mich. 758 (1972), involved, Inter alia, a situation in which plaintiff filed a motion to add a party defendant some nine months prior to trial. However, plaintiff failed to notice the motion for hearing until the day of trial. Hosner said that the motion for addition of party defendant on the day of trial was properly denied where plaintiff, although filing the motion well before trial, failed to notice it for hearing.

Plaintiff herein failed to notice his motion for hearing at the time the motion was filed, and his request was obviously not before the trial court previous to the expiration of the statute of limitations. Plaintiff had to have permission to amend his complaint. Plaintiff had to notice his motion for hearing in order that the trial court could consider it. Generally, motions 'are heard on the day for which they are noticed for hearing * * *'. Holmes & George, An Introduction To Michigan Civil And Criminal Procedure (Institute for Continuing Legal Education, 1974), p. 66. Plaintiff was dilatory in bringing his request before the trial court, and failed to do so before the expiration of the two-year statute of limitations.

According to Anno.: Change in party after statute of limitations has run, 8 A.L.R.2d 6, § 53, p. 112, it is 'well settled' that:

'Where a defendant is brought into an action for the first time upon the filing of an amended or supplemental complaint, the filing of the amendment constitutes the commencement of the action in so far as such new defendant is concerned. The statutory period runs until the time of the filing of the amendment, and if at that time the action is barred, a party thus subsequently brought in may avail himself of the plea.'

An exception to this rule is that the additional defendant may be brought in after the expiration of the statute of limitations where the new party is a necessary party, or acquired its interest in the subject matter of the suit 'pendente lite' or where the amendment 'merely corrects a defect in the original proceeding'. 8 A.L.R.2d 6, 112. None of these exceptions apply here. The Michigan decisions cited in support of these exceptions, Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N.W. 841 (1900), and Prather Engineering Co. v. Detroit, F & S R Co., 152 Mich. 582, 116 N.W. 376 (1908), involved the foreclosure of a mechanics lien and the addition of a necessary and proper defendant. In the instant case, the county road commission, although perhaps desirable as a defendant as an alleged tort-feasor, is not strictly necessary to the proper resolution of plaintiff's suit. As a general rule, the statute of limitations continues to run in favor of an alleged joint tort-feasor until it is made a party to the suit. 8 A.L.R.2d 6, § 58, p. 120. 51 Am.Jur.2d, Limitation of Actions, §§ 272, 277, pp. 798, 800. See also Ciotti v. Ullrich, 267 Mich. 136, 138--139, 255 N.W. 179 (1934), for the general rule that suit is not considered having been commenced against a new defendant until that person is made a party.

In our first opinion, we held that the statute of limitations was tolled from the time plaintiff filed his motion to amend until the trial court signed the order allowing plaintiff to add the county road commission as a defendant. 53 Mich.App. 505, 509--510, 219 N.W.2d 806. As noted in IUUAWA v. Wood, 337 Mich. 8, 15, 59 N.W.2d 60, 63 (1953), 'The ends of justice do not require the addition of parties defendant after the running of the statute of limitations, unless it has been tolled'. Wood affirmed the denial of a motion to add party defendants in a libel suit when the motions were made after the statute of limitations had run as to the new parties. 337 Mich. 8, 15, 59 N.W.2d 60. There was no proceeding pending against the county road commission before the expiration of the statute of limitations.

Buscaino v. Rhodes, 385 Mich. 474, 481--483, 189 N.W.2d 202 (1971), said that a suit was commenced by the filing of a complaint. The complaint against the county road commission in our case was not filed until October 27, 1972. Plaintiff was dilatory in seeking the authorization to amend the pleadings, and did not commence suit against the county road commission until after the expiration of the statute of limitations.

Unlike the situation in Wells v. Detroit News, Inc., 360 Mich. 634, 640--641, 104 N.W.2d 767 (1960), plaintiff's amendment was not an effort to correct a misnomer. Where there is no service in fact on the misnamed party and where the new defendant was a distinct separate legal entity, our Court has affirmed the denial of a motion to amend and add a party defendant where that motion was apparently made after the expiration of the applicable statute of limitations. Apple v. Solomon, 12 Mich.App. 393, 395--396, 163 N.W.2d 20 (1968). However, where a right party is served in the wrong name or in the wrong capacity, our Court...

To continue reading

Request your trial
23 cases
  • Ringrose v. Engelberg Huller Co., Inc., 80-1086
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 2, 1982
    ...the claim against that party but not as to new parties. Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971); Forest v. Parmalee, 60 Mich.App. 401, 231 N.W.2d 378 (1975); Krontz v. Estovez, 49 Mich.App. 30, 211 N.W.2d 213 (1973). Michigan follows the principles stated in Federal Rule 15......
  • People v. Kowalski
    • United States
    • Court of Appeal of Michigan (US)
    • June 26, 1998
    ...GCR 1963, 803.1, he failed to fulfill his obligation to call the motion to the court's attention. 2 Forest v. Parmalee (On Rehearing), 60 Mich.App. 401, 405, 231 N.W.2d 378 (1975), aff'd. 402 Mich. 348, 262 N.W.2d 653 (1978). The trial court must ordinarily preside over a hearing on a motio......
  • Barczak v. Rockwell Intern. Corp., Docket No. 23462
    • United States
    • Court of Appeal of Michigan (US)
    • May 17, 1976
    ...See Beach v. UAW, 19 Mich.App. 560, 172 N.W.2d 901 (1969) (Pursuing union remedies does not toll the statute), Forest v. Parmalee, 60 Mich.App. 401, 231 N.W.2d 378 (1975) (mere notice of the existence of a potential claim does not toll the statute), and Smith v. Bordelove, 63 Mich.App. 384,......
  • GLAMBIN v. JC Penney Co., 85-CV-71489-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • December 5, 1985
    ...Motion to Amend his Complaint, filed prior to the expiration of the three year period of limitations, may have tolled the statute.7 In Forest v. Parmalee (On Rehearing),8 the Court affirmed the trial court's entry of an Order granting Accelerated Judgment to a Defendant added to the lawsuit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT