Miller v. Chapman Contracting

• Decision Date: 25 April 2007
• Docket Number: No. 130808.,130808.
• Citation: 477 Mich. 102,730 N.W.2d 462
• Parties: Buddy MILLER, II, Plaintiff-Appellant, v. CHAPMAN CONTRACTING, Ramzy Kizy, Jr., Kevin R. Paperd, and Sweepmaster, Inc., Defendants-Appellees.
• Court: Michigan Supreme Court

730 N.W.2d 462

477 Mich. 102

Buddy MILLER, II, Plaintiff-Appellant, v. CHAPMAN CONTRACTING, Ramzy Kizy, Jr., Kevin R. Paperd, and Sweepmaster, Inc., Defendants-Appellees.

No. 130808.

Supreme Court of Michigan.

April 25, 2007.

Rockind & Liss, PLLC (by Jason J. Liss), Farmington Hills, for the plaintiff.

Secrest Wardle (by Michael L. Updike), Farmington Hills and Audrey R. Monaghan, Southfield, for the defendants.

OPINION

PER CURIAM.

In this case, plaintiff's attorney erroneously named plaintiff, instead of his bankruptcy trustee, as the plaintiff in this lawsuit. After the period of limitations expired, defendants moved to dismiss the case, pointing out the failure to name plaintiff's bankruptcy trustee in the lawsuit. Plaintiff filed a motion to amend the complaint to substitute the bankruptcy trustee as plaintiff, but the trial court dismissed the lawsuit. The Court of Appeals affirmed. We likewise affirm. MCR 7.302(G)(1). In doing so, we adopt as our own the following unpublished opinion per curiam of the Court of Appeals, issued February 16, 2006 (Docket No. 256676), 2006 WL 355128.

Plaintiff appeals as of right from the trial court order denying his motion to amend his complaint and granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(5) based on lack of standing. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

Plaintiff's complaint alleged that on December 28, 2000, defendant Kevin Paperd was operating an automobile that was owned by one or more of the remaining defendants when he negligently struck plaintiff's vehicle, causing plaintiff to suffer a serious impairment of an important body function and/or serious permanent disfigurement. Defendants sought summary disposition pursuant to MCR 2.116(C)(5), contending that plaintiff was not the real party in interest and lacked standing to sue. Defendants alleged that plaintiff had filed a petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code [11 USC 701 et seq.] on March 6, 2002, and that all of plaintiff's rights regarding the December 28, 2000, accident were therefore transferred to the bankruptcy trustee, who was the sole party who could pursue the lawsuit.

In response, plaintiff filed a motion for leave to file an amended complaint in order to correct the "misidentification" of the named plaintiff. Plaintiff stated that Wendy Turner Lewis, the trustee for his bankruptcy estate, had authorized plaintiff's counsel to file a complaint on behalf of the bankruptcy estate, and that counsel, through no fault of plaintiff or Lewis, had misidentified the plaintiff.

The trial court entered an order denying as futile plaintiff's motion to amend and granting defendants' motion for summary disposition, stating:

"There is no dispute the real party in interest is the bankruptcy trustee, not Plaintiff. Thus, the issue is whether Plaintiff should be granted leave to amend to add the bankruptcy trustee.

"Under MCR 2.118(A)(2), leave to amend pleadings should be freely given when justice so requires. Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party, or where amendment would be futile. Ben [P.] Fyke & Sons v. Gunter [Co.], 390 Mich. 649, 213 N.W.2d 134 (1973). In [Employers Mut. Cas. Co. v. Petroleum Equipment, Inc., 190 Mich. App. 57, 63, 475 N.W.2d 418 (1991)], the court held that `Although an amendment generally relates back to the date of the original filing if the new claim asserted arises out of the conduct, transaction, or occurrence set forth in the original pleading, MCR 2.118(D), the relation-back doctrine does not extend to the addition of new parties.'

"The court is satisfied that because the bankruptcy trustee was the real party in interest prior to the filing of the Complaint, this is a motion to add a party and is not merely a request to correct a misnomer. Thus, the court finds that based on the binding precedent in Employers, the amendment would be futile as the addition of the new party cannot relate back to the original Complaint."

MCR 2.201(B) provides that, generally, "[a]n action must be prosecuted in the name of the real party in interest . . . ." "A real party in interest is one who is vested with the right of action on a given claim, although the beneficial interest may be in another." Blue Cross & Blue Shield of Michigan v. Eaton Rapids Comm. Hosp., 221 Mich.App. 301, 311, 561 N.W.2d 488 (1997). "This standing doctrine recognizes that litigation should be begun only by a party having an interest that will assure sincere and vigorous advocacy." [City of] Kalamazoo v. Richland Twp., 221 Mich. App. 531, 534, 562 N.W.2d 237 (1997). It is undisputed that the bankruptcy trustee is the real party in interest and that she should have been named as the plaintiff.¹

MCR 2.118(A)(2) provides that leave to amend a pleading "shall be freely given when justice so requires." But "leave to amend a complaint may be denied for particularized reasons, such as . . . where amendment would be futile." Hakari v. Ski Brule, Inc., 230 Mich.App. 352, 355, 584 N.W.2d 345 (1998).

MCR 2.118(D) provides:

"An amendment that adds a claim or a defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading."

However, "[t]he relation-back doctrine does not apply to the addition of new parties." Cowles v. Bank West, 263 Mich.App. 213, 229, 687 N.W.2d 603 (2004) [aff'd in part, vacated in part, and remanded 476 Mich. 1, 719 N.W.2d 94 (2006)]; see also Employers Mutual, supra at 63.

Plaintiff contends, nevertheless, that the requested amendment would do no more than correct a misnomer and that the Employers Mutual rule therefore does not bar the amendment and its relation back. "`As a general rule, . . . a misnomer of a plaintiff or defendant is amendable unless the amendment is such as to effect an entire change of parties.'" Parke, Davis & Co. v. Grand Trunk Ry. System, 207 Mich. 388, 391, 174 N.W. 145 (1919) (citation omitted). The misnomer doctrine applies only to correct inconsequential deficiencies or technicalities in the naming of parties, for example, "`[w]here the right corporation has been sued by the wrong name, and service has been made upon the right party, although by a wrong name . . . .'" Wells v. Detroit News, Inc., 360 Mich. 634, 641, 104 N.W.2d 767 (1960), quoting Daly v. Blair, 183 Mich. 351, 353, 150 N.W. 134 (1914); see also Detroit Independent Sprinkler Co. v. Plywood Products Corp., 311 Mich. 226, 232, 18 N.W.2d 387 (1945) (allowing an amendment to correct the designation of the named plaintiff from "corporation" to "partnership")[,] and Stever v. Brown, 119 Mich. 196, 77 N.W. 704 (1899) (holding that an amendment to substitute the plaintiffs' full names where their first and middle names had been reduced to initials in the original complaint would have been permissible). Where, as here, the plaintiff seeks to substitute or add a wholly new and different party to the proceedings, the misnomer doctrine is inapplicable. See Voigt Brewery [Brewing] Co. v. Pacifico, 139 Mich. 284, 286, 102 N.W. 739 (1905); Rheaume v. Vandenberg, 232 Mich.App. 417, 423 n. 2, 591 N.W.2d 331 (1998).

¹ See 11 USC 541; 11 USC 323; [In re Cottrell], 876 F.2d 540 (C.A.6, 1989).

Moreover, this Court adds that MCR 2.118(D) specifies that an amendment relates back to the date of the original pleading only if it "adds a claim or a defense"; it does not specify that an amendment to add a new party also relates back to the date of the original pleading.¹ Consequently, the Court of Appeals correctly affirmed the judgment of the trial court that the amendment to substitute plaintiff's bankruptcy trustee as plaintiff after the expiration of the period of limitations would be futile. Therefore, the decision of the Court of Appeals is affirmed.

TAYLOR, C.J., CORRIGAN, YOUNG and MARKMAN, JJ., concur.

WEAVER, J. (dissenting).

I would deny leave to appeal in this case because to do otherwise would create an injustice.

I believe that the bankruptcy trustee in this case is not a "new party" in the sense of "another party" being added by amendment of the complaint. Rather, the amendment in this case simply involves replacing the wrongly named plaintiff, "Buddy Miller," with the correct name of Buddy Miller's bankruptcy trustee, "Wendy Turner Lewis." As a result, any case-law discussing whether the relation-back doctrine applies to adding plaintiffs to a suit is immaterial because a new plaintiff is not being added.

The Michigan Court Rules do not address the protocol for addition of parties to a suit. This Court has opened an administrative file to consider whether we should adopt, or not adopt, a rule amending the Michigan Court Rules to govern the addition of a party to a suit.

MARILYN KELLY, J. (dissenting).

A majority of the Court has affirmed the dismissal of this suit on the basis of a contrived legal technicality. It has misread MCR 2.118. In extinguishing the valid claim, it has allowed gamesmanship to take precedence over the orderly disposition of an injured party's cause of action. The result is sad. I respectfully dissent and would reverse the lower courts' judgments, allow trustee Wendy Turner Lewis to be substituted as the party plaintiff, and enable the case to proceed to trial.

FACTS

Plaintiff Buddy Miller, II, was injured when the automobile in which he was traveling was struck by another driven by defendant Kevin R. Paperd. The vehicle that Paperd was operating was owned by one or more of the other defendants. On March 6, 2002, plaintiff filed a voluntary petition for personal bankruptcy under Chapter 7 of...