Charpentier v. Young, Docket No. 77-1099
| Decision Date | 08 May 1978 |
| Docket Number | Docket No. 77-1099 |
| Citation | 268 N.W.2d 322,83 Mich.App. 145 |
| Parties | Irene CHARPENTIER and Ludger Charpentier, Plaintiffs-Appellants, v. Francis R. YOUNG and Margeret Lovernick, City of Ferndale, Department of Police, Defendants, and Benny Chincarini and Margaret Chincarini d/b/a Gay Paree Lounge, Clarence M. Jones d/b/a Golden Gate Lounge and Charles Lamoureaux d/b/a Intimate Lounge, jointly and severally, Defendants- Appellees. 83 Mich.App. 145, 268 N.W.2d 322 |
| Court | Court of Appeal of Michigan — District of US |
[83 MICHAPP 146] Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard, Detroit, for plaintiffs-appellants.
Francis R. Young, in pro per.
George A. Googasian, Bloomfield Hills, for Lovernick.
John L. Wooster, Birmingham, for City of Ferndale Police.
William R. Still, Detroit, for Chincarini.
[83 MICHAPP 147] Seth H. Barsky, Southfield, for Jones.
David L. Richards, Huntington Woods, for Lamoureaux.
Before BEASLEY, P. J., and BASHARA and RILEY, JJ.
Plaintiffs appeal from a trial court order granting defendants'-appellees' motion for an accelerated judgment. That motion was based upon the alleged failure of plaintiffs to commerce their dramshop action 1 against these defendants within the two-year statute of limitations. 2
Injury was sustained by plaintiffs from a collision with an automobile driven by defendant Young, occurring on August 2, 1974. During a July 2, 1975, pretrial deposition, plaintiffs learned that Young had been drinking at the establishments of the defendants involved in this appeal.
On March 10, 1976, plaintiffs filed a motion to amend their complaint to add those defendants under the dramshop act. After several adjournments, the motion was heard without opposition and granted on March 31, 1976. Attached to the motion was a copy of the proposed amended complaint, but, according to the record, it was not filed with the court for service until August 6, 1976. Apparently, the intervening time period was consumed by plaintiffs' motion for entry of an order allowing the complaint to be amended and several adjournments of the hearing on that motion. This [83 MICHAPP 148] latter motion was granted on July 7, 1976, and a nunc pro tunc order was filed on August 24, 1976.
Plaintiffs contend that the filing of the motion to amend, together with a copy of the proposed amended complaint, constituted a commencement of the action against the added defendants within the meaning of GCR 1963, 101 3. Consequently, plaintiffs maintain that the action was commenced on March 10, 1976, well within the limitations period, which ended on August 2, 1976.
In the alternative, plaintiffs argue that the statute of limitations was tolled during the interim between the filing and granting of the motion to amend. Adding this twenty-one day period to the time limitation on dramshop actions, plaintiffs maintain that the amended complaint was filed within the statute of limitations, which did not bar commencement of proceedings until August 23, 1976.
Appellees contend that rule 101 be strictly construed. Accordingly, they argue that only when the amended complaint is actually filed should the action be deemed to have commenced against the added defendants.
The opposing sides of this controversy bring into juxtaposition the purposes and policy underlying our court rules permitting pretrial amendment of pleadings and those upon which are founded statutes limiting the time in which a cause of action may be prosecuted. As applicable to the instant case, the former permit a diligent plaintiff to seek recovery from those whose potential liability and existence are not discovered until after the initiation of a cause of action against another involved in the same transaction or occurrence. 4 The latter [83 MICHAPP 149] promote security from litigation arising out of transactions or occurrences remote in time.
Noting that GCR 1963, 101 is derived from F.R.Civ.P. 3, 5 plaintiffs cite a number of Federal court decisions holding that the filing of a motion to amend to add parties is commencement of the action against those parties. 6 To support their tolling theory, plaintiffs cite the decision of this Court in Forest v. Parmalee (On Rehearing), 60 Mich.App. 401, 231 N.W.2d 378 (1975).
While the Federal decisions are enlightening, we decline to formulate any inflexible rule based upon their suggested interpretation of the Federal counterpart to GCR 1963, 101. Similarly, a more appealing fixed rule of procedure is not yielded from our review of Parmalee. Our conclusion is that any rule made to apply without regard to the peculiar circumstances of each case would undermine the purposes of both our court rules and the statutes of limitation and invite a risk of injustice of an unacceptably high degree.
We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court's review of the circumstances leading up to the [83 MICHAPP 150] filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.
In every case cited by the plaintiffs under F.R.Civ.P. 3, the particular circumstances were of dominant influence on the court. Their common factual characteristics included the filing of a motion to amend at or near the end of the limitations period, a ruling on the motion near or after the expiration of that period, and a contemporaneous filing and service of the amended complaint. 7
In the case under review, the plaintiffs obtained knowledge of the added defendants' potential liability more than a year before expiration of the statute of limitations. Their motion to amend was filed eight months later and granted more than four months prior to the end of the limitations period. Nevertheless, the plaintiffs permitted the remaining four months to lapse before filing the amended complaint with the court for service upon the added defendants.
As stated by Justice Swayne of the United States Supreme Court:
Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879), quoted in Ramsey v. Child, Hulswit & Co., 198 Mich. 658, 671, 165 N.W. 936 (1917). Our rule 101 is in harmony with these considerations by providing a simple and...
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