Midura v. Lincoln Consol. Schools

• Decision Date: 26 January 1982
• Docket Number: Docket No. 52747
• Citation: 314 N.W.2d 691,111 Mich.App. 558
• Parties: Viola MIDURA, Plaintiff-Appellant, v. LINCOLN CONSOLIDATED SCHOOLS, Defendant-Appellee. 111 Mich.App. 558, 314 N.W.2d 691
• Court: Court of Appeal of Michigan — District of US

Page 691

314 N.W.2d 691

Viola MIDURA, Plaintiff-Appellant, v. LINCOLN CONSOLIDATED SCHOOLS, Defendant-Appellee.

Docket No. 52747.

111 Mich.App. 558, 314 N.W.2d 691

Court of Appeals of Michigan.

Submitted June 10, 1981.

Decided Nov. 30, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 560] Burgoyne & Pratt, P. C., Ann Arbor, for plaintiff-appellant.

Thrun, Maatsch & Nordberg, P. C. by Donald J. Bonato, Lansing, for defendant-appellee.

Before DANHOF, C. J., and CAVANAGH and FREEMAN, ^* JJ.

FREEMAN, Judge.

Plaintiff appeals by right from the denial of her motion for leave to amend her complaint. Plaintiff moved to amend her complaint following an order granting defendant's motion for summary judgment for failure to state a claim. GCR 1963, 117.2(1).

On February 22, 1979, plaintiff filed a three-count complaint alleging that defendant had denied her procedural due process rights by terminating her employment as a school bus driver. Defendant moved for summary judgment for failure to state a claim. On April 11, 1979, a hearing was held on this motion. Both parties filed supporting briefs and, on November 26, 1979, the trial court granted defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1). Plaintiff does not challenge the correctness of that decision on appeal. Plaintiff then secured new counsel and moved for a new hearing and for leave to amend her complaint on December 17, 1979. A hearing was held on that motion and plaintiff filed a memorandum in support of her position along with a proposed amended complaint. This proposed amended complaint contained only one count, alleging[111 MICHAPP 561] that in terminating plaintiff's employment defendant violated the terms of a collective bargaining agreement and denied plaintiff's procedural and substantive due process rights.

Although he found that the amended complaint stated a cause of action, the trial judge denied the motion for leave to amend, stating:

"It is not so determinative in this case that the request for leave to amend the pleadings comes after the final judgment, because the final judgment was granted on a motion for summary dismissal before trial, that is to say, before any significant commitment of resources by the party opposing the motion or by the court. What is determinative is the risk of increased liability for back wages that would be borne by the Defendant under Plaintiff's claim for pay as if she had not been discharged. If Plaintiff prevails, every day of delay before that judgment is another day's wages that Defendant will have to pay Plaintiff without any work from Plaintiff in return. But for Plaintiff's refusal to make a timely amendment to the pleadings, Defendant could not have been subjected to increased liability of at least five months back wages.

"Pursuant to GCR 117.3 the court finds that the increased potential liability for back wages shows that the proposed amendment is not justified."

We agree with the trial court's holding that entry of a grant of summary judgment does not preclude amendment of the complaint. Plaintiff could amend her pleadings, but only by leave of the Court. Schimmer v. Wolverine Ins. Co., 54 Mich.App. 291, 298, 220 N.W.2d 772 (1974), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 415.

The rule governing amendment of pleadings, GCR 1963, 118.1, was designed to facilitate the amendment of pleadings except where prejudice to [111 MICHAPP 562] the opposing party would result. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973). In Fyke & Sons, the Court held that denial is justified only "for particularized reasons":

"In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be 'freely given.' Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d...