Browning v. Buko

• Docket Number: SC: 163538,COA: 356874
• Decision Date: 09 September 2022
• Citation: 979 N.W.2d 196 (Mem)
• Parties: Dana BROWNING, as Guardian and Conservator of Brenda Cupp, LIP, and as Personal Representative of the Estate of Brenda Cupp, Deceased, Plaintiff-Appellee, v. Ruth BUKO and LeFevre & LeFevre, PLLC, Defendants-Appellants.
• Court: Michigan Supreme Court

979 N.W.2d 196 (Mem)

Dana BROWNING, as Guardian and Conservator of Brenda Cupp, LIP, and as Personal Representative of the Estate of Brenda Cupp, Deceased, Plaintiff-Appellee,

v.Ruth BUKO and LeFevre & LeFevre, PLLC, Defendants-Appellants.

SC: 163538

COA: 356874

Supreme Court of Michigan.

September 9, 2022

Order

On order of the Court, the application for leave to appeal the August 2, 2021 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

Viviano, J. (dissenting).

In the first months of the COVID-19 pandemic, this Court issued various orders that purported to toll statutory limitations periods. Defendants in this legal malpractice action contend that those orders were invalid because they were an unconstitutional exercise of legislative power. I believe defendants have raised a strong argument that should be considered now. I therefore dissent from the Court's order denying leave to appeal and would instead remand to the Court of Appeals for full consideration.

Our first order tolling statutory limitations periods, Administrative Order No. 2020-3, 505 Mich. cxxvii (2020), was issued on March 23, 2020, near the outset of the pandemic. In it, we stated:

For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1).^{[1 ]}

The effect of this provision was to toll statutory limitations periods. We went on to say that the "order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses ...."² And the order expressly provided that "[c]ourts must have a system in place to allow filings without face-to-face contact ...." The tolling lasted for any day in which the Governor had declared an emergency. The order was effective as of March 10, 2020. We eventually ended the tolling period on June 20, 2020:

In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil and probate case types under MCR 1.108(1). Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020.^{[3 ]}

Thus, under this order, starting on June 20, 2020, a plaintiff would have the same number of days to file the claim as he or she had on March 23, 2020. The effect of our orders, then, was to toll the statutory limitations period from March 10, 2020, until June 20, 2020.⁴

The facts in the present case are lengthy, but the resolution of this appeal depends on our orders tolling the statutory limitations period. In June 2007, Brenda Cupp suffered a traumatic brain injury after a vehicle crash. Defendants Ruth Buko and her law firm, LeFevre & LeFevre, PLLC, represented Cupp in the resulting lawsuit. Plaintiff, Cupp's sister, obtained a guardianship over Cupp. Various proceedings dragged on for years, both here and in Kentucky. In April 2019, Cupp passed away. On June 30, 2020, plaintiff filed the present action (as guardian and conservator of Cupp as well as personal representative of Cupp's estate), against defendants, Cupp's former attorney and the attorney's law firm, for malpractice. Defendants responded by moving to dismiss the case, arguing among other things that the claim was barred by the statute of limitations. The probate court denied the motion, relying on this Court's administrative orders tolling the filing deadlines.⁵ The Court of Appeals denied defendants’ application for leave to file an interlocutory appeal, although Judge JANSEN voted to grant leave.

Defendants now seek leave to appeal here. They have raised the argument that our administrative orders improperly exercised legislative power.⁶ I believe defendants have presented a strong argument that merits our attention. We have very limited authority to issue court rules that prevail over statutes. We may do so only in matters dealing with practice and procedure in the courts and not in matters involving substantive law.⁷ And, with regard to statutes of limitations, we have expressly stated that "[s]tatutes regarding periods of limitations are substantive in nature."⁸ Accordingly, we held in Gladych v New Family Homes, Inc , "that, to the extent [a statute] enacts additional requirements regarding the tolling of the statute of limitations, the statute would supersede the court rule."⁹

Thus, our court rules and orders cannot trump a statute of limitations. And since nothing in the relevant statutory framework allows for the tolling that occurred here, the only potential grounds for the tolling order is under our equitable powers. But equitable tolling has been largely discredited.¹⁰ We have noted that the equitable power "has traditionally been reserved for ‘unusual circumstances ....’ "¹¹ "Equitable tolling is typically available only if the claimant was prevented in some extraordinary way from exercising his or her rights."¹² A pandemic during which the courts remain open to receive filings would not fit that bill and, unsurprisingly, it does not appear that our broad tolling orders have any historical precedent. The closest analogy appears to be caselaw allowing equitable tolling when courts were completely closed or inaccessible during wartime. Even in that context, however, the original English rule was that "the non-existence of any Courts, or their being shut, is no plea to avoid the bar of the statute of limitations."¹³ The common explanation for this rule was that if the statute of limitations did not expressly provide for tolling for the closure of courts during a war, then a court had no place reading that exception into the statute.¹⁴ Shortly after the Civil War, the Supreme Court of Arkansas followed a line of English cases holding "that, though the government was usurped, and the courts closed, the running of the statute of limitations was not affected; and the reason assigned was, that the statute contained no such exception ...."¹⁵

But this rule ultimately did not prevail. Another line of cases had, as early as 1805, reached the opposite result, holding that war could suspend statutes of limitations because alien enemies could not use our courts during hostilities.¹⁶ In a deluge of cases following the Civil War, the United States Supreme Court acknowledged:

Text writers usually say, on the authority of the old cases referred to, that the non-existence of courts, or their being shut, is no answer to the bar of the statute of limitations, but Plowden says that things happening by an invincible necessity, though they be against common law, or an act of Parliament, shall not be prejudicial. That, therefore, to say that the courts were shut, is a good excuse on voucher of record.^{[17 ]}

The Court went on to hold that the statute of limitations would not bar the action when the courts were constructively closed during the Civil War. It explained that the "[a]bility to sue was the status of the creditor when the contract was made, but the effect of war is to suspend the right, not only without any fault on his part, but under circumstances which make it his duty to abstain from any such attempt."¹⁸ Rather, the actions of the government, over which the party had no control, suspended his remedy.¹⁹ Or, as the Court elsewhere stated, " ‘The law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other.’ "²⁰

The Court reaffirmed Hanger in numerous subsequent decisions, and state courts—including those in Arkansas—eventually followed suit.²¹ The ultimate justification for these holdings was that the courts were closed to the plaintiffs. Most of the discussion in the cases focused on the reason for the closure, which was the principle that citizens of belligerents could not resort to enemy courts to enforce rights during war.²² If the suit was between two individuals who, during the war, had access to the same courts, then the statutes of limitations continued to run.²³

In light of this caselaw, it appears that equitable tolling is justified in these circumstances only for court closures or the inaccessibility of courts.²⁴ Our administrative orders went well beyond that because they were not limited to situations in which the courts were closed. Defendants thus raise a solid argument that we lacked any legal basis for tolling the statutes and that doing so usurped the Legislature's power.²⁵ While I voted for these orders along with the other members of the Court, that does not mean they should be immunized from prompt review. Time and reflection—which we did not have in abundance when the orders were issued—may reveal that we were wrong. Our initial orders were issued at a point when it was unclear whether and to what extent courts might close. Even so, as Justice Felix Frankfurter once said, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."²⁶ I would not reject defendant's arguments simply because the potential flaws in our...