Amer v. Clarence A. Durbin Associates, Inc., Docket No. 77-1454

• Decision Date: 07 November 1978
• Docket Number: Docket No. 77-1454
• Parties: Mohammed A. AMER and Hanem Amer, Plaintiffs-Appellees, v. CLARENCE A. DURBIN ASSOCIATES, INC., a Mich. Corp., Gilbert W. Savage, L&S Supply Company, Fred Anthony Giovannoni Cement Works, John Doe Corporation, jointly and severally, Defendants, and Van Horn Bros., Inc., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 588

273 N.W.2d 588

87 Mich.App. 62

Mohammed A. AMER and Hanem Amer, Plaintiffs-Appellees, v. CLARENCE A. DURBIN ASSOCIATES, INC., a Mich. Corp., Gilbert W. Savage, L&S Supply Company, Fred Anthony Giovannoni Cement Works, John Doe Corporation, jointly and severally, Defendants and Van Horn Bros., Inc., Defendant-Appellant.

Docket No. 77-1454.

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1979.

Harvey, Kruse & Westen by Gary A. Maximiuk, Detroit, for defendant-appellant.

Abdeen M. Jabars, Richard A. Soble, Detroit, for Amer.

John Hayes, Detroit, for Durbin.

Before RILEY, P. J., and CAVANAGH and HENSICK, ^* JJ.

PER CURIAM.

The essential facts of this appeal are not in dispute. Plaintiff Mohammed Amer was allegedly injured on October 2, 1973, in a slip and fall accident. On July 9, 1975, plaintiffs filed a complaint in this action against Durbin Associates and John Doe Corporation. John Doe Corporation allegedly manufactured and sold construction and finishing materials for concrete floors to the builders of the building in which plaintiff allegedly fell. Through answers to interrogatories filed by defendant Durbin on March 17, 1976, plaintiffs became aware of the role of defendant Van Horn Bros., Inc., in the construction of the building. On September 27, 1976, plaintiffs filed a "motion to add necessary parties defendant". The motion was based on GCR 1963, 205. Van Horn Bros., Inc., was among those defendants sought to be added. On October 1, 1976, the trial court entered an order whereby the additional defendants were "made parties to this action." On October 18, 1976, plaintiffs filed an amended complaint which specifically named defendant Van Horn. Defendant Van Horn was served with this complaint on October 26, 1976.

On November 12, 1976, defendant Van Horn filed a motion for accelerated judgment based on the applicable three-year statute of limitations. The trial court denied defendant's motion, holding that its order conferred jurisdiction over defendant and served to add defendant as a party; that defendant was a necessary party; and that the amendment cured a misnomer in the original complaint by substituting defendant for John Doe Corporation.

The parties agree that this action is controlled by the three-year statute of limitations in M.C.L. § 600.5805(7); M.S.A. § 27A.5805(7). The issue in dispute is whether the action was commenced against this defendant within that three-year limitations period.

In Forest v. Parmalee (On Rehearing ), 60 Mich.App. 401, 406-407, 231 N.W.2d 378, 381 (1975), Aff'd on other grounds, 402 Mich. 348, 262 N.W.2d 653 (1978), this Court stated:

"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. * * * 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."

As to plaintiffs' assertion that defendant is a necessary party, we disagree. Defendant is, at most, a joint tortfeasor. Plaintiffs have complete relief available from defendants already in the suit. Therefore, defendant is not a necessary party within the meaning of GCR 1963, 205. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 551. Cf. Wolff v. Dalton, 28 Mich.App. 643, 646, 185 N.W.2d 189 (1970). Defendant's presence in the suit may be desirable, but it is not necessary. See Forest v. Parmalee, supra, 60 Mich.App. at 406-407, 231 N.W.2d 378. The trial court thus erred in ruling that defendant was a necessary party. Because defendant is not a necessary party, plaintiffs must begin their action against defendant within the limitations period.

A court action is normally commenced with the filing of a complaint. Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971), GCR 1963, 101. That rule also applies when parties are added as defendants to a suit. Forest v. Parmalee, supra, 60 Mich.App. at 406-407, 231 N.W.2d 378. In the instant case, plaintiffs contend and the trial court agreed that the action against defendant commenced with the trial court's order. Defendant argues that the trial court's order does nothing more than grant plaintiffs leave to amend their complaint to include defendant as a party. Our review of GCR 1963, 205.2, 206, 207 and the Author's Comments thereto in 1 Honigman & Hawkins, Supra, persuades us that the defendant is correct and the trial court in error in this regard. We then are left with the issue of whether filing a motion for leave to amend a complaint tolls the statute of limitations.

Our review of the original opinion issued in Forest and the decision on rehearing ¹ indicates that, in appropriate circumstances, such a motion may have this effect. These opinions suggest that the deciding factor in this regard is a plaintiff's diligence in attempting to join the defendant. This is also the approach adopted in Charpentier v. Young, 83 Mich.App. 145, 268 N.W.2d 322 (1978). In Charpentier, this Court was faced with a fact situation similar to the one at bar and adopted a case by case approach. It left much discretion with...