Olin by Curtis v. Mercy Health Hackley Campus
| Decision Date | 21 May 2019 |
| Docket Number | 342937,Nos. 341523,s. 341523 |
| Parties | Jaxon OLIN, Minor, BY Next Friend Nicole CURTIS, Plaintiff-Appellant, v. MERCY HEALTH HACKLEY CAMPUS, also known as Mercy Health Partners, Lakeshore Anesthesia Services PC, Edward Winiecke, M.D., Elizabeth Pitt, M.D., Shoreline E.N.T., PLC, and Paul E. Lomeo, D.O., Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Bendure & Thomas, PLC, Grosse Pointe Park (by Mark R. Bendure ) and McKeen & Associates, PC, Detroit (by Brian J. McKeen and John LaParl, Jr. ) for plaintiff.
Hackney Grover, East Lansing (by Loretta B. Subhi and Randy J. Hackney ) for Paul E. Lomeo, D.O., and Shoreline E.N.T., PLC.
Rutledge, Manion, Rabaut, Terry & Thomas, PC, Detroit (by Dale A. Robinson ) for Edward Winiecke, M.D., and Lakeshore Anesthesia Services, PC.
Johnson & Wyngaarden, PC, Okemos (by David R. Johnson and Michael L. Van Erp ) for Mercy Health Hackley Campus.
Sullivan, Ward, Asher & Patton, PC, Southfield (by Keith P. Felty ) for Elizabeth Pitt, M.D.
Before: Beckering, P.J., and Servitto and Stephens, JJ.
In Docket No. 341523, plaintiff, Jaxon Olin, a minor, through his next friend, Nicole Curtis, appeals by right the trial court’s order granting defendants' motion for summary disposition and dismissing with prejudice his medical malpractice lawsuit. The crux of the issue on appeal is whether a lawsuit, timely filed by or on behalf of a minor plaintiff, is defective and invalid until the trial court formally appoints a next friend for the minor. The trial court granted defendants' motion based on the expiration of the applicable limitations period before entry of an order formally appointing plaintiff’s mother, Curtis, as plaintiff’s next friend.1 For the reasons set forth in this opinion, we reverse and remand to the trial court for further proceedings.
On September 22, 2014, plaintiff, who was 10 years old at the time, underwent an adenoidectomy
, a direct laryngoscopy, and a lingual tonsillectomy. It is plaintiff’s contention that defendants negligently performed the surgery, resulting in extensive tracheal tearing, total collapse of his lungs, severe and extensive subcutaneous emphysema, a pneumomediastinum, vocal-cord paralysis, and other injuries. On September 20, 2016, two days before the two-year period of limitations would have otherwise expired, MCL 600.5805(8), plaintiff’s attorney served on defendants a notice of intent (NOI) to file a medical malpractice claim. This served to toll the statutory limitations period for 182 days. See MCL 600.2912b. On March 22, 2017, plaintiff filed his complaint, with Curtis operating as his next friend pending formal appointment by the trial court. The parties agree that the statutory limitations period would have expired on March 23, 2017, and that plaintiff filed the complaint within the statutory limitations period.
Defendants had filed their answers and the parties were engaged in discovery when plaintiff’s counsel realized that the trial court had not yet formally appointed Curtis as plaintiff’s next friend. Promptly after this discovery, plaintiff’s counsel filed a petition seeking Curtis's appointment and noting that, pursuant to MCR 2.201(E), the court was required to appoint a next friend because plaintiff did not have a conservator. Plaintiff attached to the petition Curtis’s written consent to be appointed and her verification that she was willing to become responsible for the costs of the action. See MCR 2.201(E)(2)(a)(ii ). Five days later, on September 13, 2017, the trial court entered an order appointing Curtis as plaintiff’s next friend.
On the same day the trial court appointed Curtis as next friend, defendants Paul E. Lomeo, D.O., and Shoreline E.N.T., PLC, moved for summary disposition pursuant to MCR 2.116(C)(5) (), (7) (statute of limitations), and (8) (failure to state a claim). The motion asserted that defendants had become aware two days earlier that the trial court had not appointed Curtis as plaintiff’s next friend and that because she was not the appointed next friend when the action was filed, she did not have standing to file it. Defendants further argued that, according to this Court’s decision in Cotter v. Britt , unpublished per curiam opinion of the Court of Appeals, issued May 31, 2007 (Docket No. 274776), 2007 WL 1576386,2 neither plaintiff nor Curtis had standing to pursue this action on March 22, 2017, or at any time before the expiration of the period of limitations on March 23, 2017. Thus, defendants claimed that plaintiff’s case should be dismissed as time-barred. All the other defendants joined in the motion.
At the October 16, 2017 hearing on defendants’ motion, defendants repeated the argument they had set forth in their summary-disposition motion and supporting brief. In opposition to the motion, plaintiff argued that nothing in the language of MCR 2.201(E) required appointment of the next friend before filing the complaint and that the language of the court rule actually contemplates the opposite because it refers to the nomination for appointment of a next friend "after service of process." MCR 2.201(E)(2)(a)(iii). Plaintiff also argued that the delay in formally appointing Curtis was, at most, a harmless oversight without prejudice. The trial court took the matter under advisement, and on November 15, 2017, it issued a written opinion in which it concluded that Cotter was directly on point and persuasive. Relying on the reasoning in Cotter , the trial court entered a corresponding order on December 4, 2017, granting defendants’ motion for summary disposition and dismissing plaintiff’s case with prejudice.
We "review de novo a trial court’s decision regarding a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law." Bernardoni v. City of Saginaw , 499 Mich. 470, 472, 886 N.W.2d 109 (2016). Defendants moved for summary disposition pursuant to MCR 2.116(C)(5), (7), and (8). Although the trial court did not identify the court rule under which it granted defendants' motion, it granted summary disposition for the reasons stated in Cotter . In Cotter , this Court relied on MCR 2.116(C)(8) to support summary disposition on the ground that the minor child "could not file suit on her own behalf, and suit was not filed by a properly appointed next friend." Cotter , unpub. op. at *3-4. A motion under MCR 2.116(8) tests the legal sufficiency of a complaint, and summary disposition is proper if "the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999) (quotation marks and citation omitted). "When deciding a motion brought under this section, a court considers only the pleadings." Id. at 119-120, citing MCR 2.116(G)(5).
This dispute primarily involves the interpretation and application of MCR 2.201.
Interpretation of a court rule is a question of law that this Court reviews de novo. CAM Constr. v. Lake Edgewood Condo. Ass'n , 465 Mich. 549, 553, 640 N.W.2d 256 (2002). When interpreting a court rule, we apply the same rules as when we engage in statutory interpretation. Id. at 553 . The overriding goal of judicial interpretation of a court rule is to give effect to the intent of the authors. See Bio–Magnetic Resonance, Inc. v. Dep't of Pub. Health , 234 Mich. App. 225, 229, 593 N.W.2d 641 (1999). The starting point of this endeavor is the language of the court rule. Id. If the language of the court rule is clear and unambiguous, then no further interpretation is required or allowed. CAM Constr. , [465 Mich. at 554, 640 N.W.2d 256]. However, when reasonable minds can differ on the meaning of the language of the rule, then judicial construction is appropriate. Benedict v. Dep't of Treasury , 236 Mich. App. 559, 563, 601 N.W.2d 151 (1999). [ Wilcoxon v. Wayne Cty. Neighborhood Legal Servs. , 252 Mich. App. 549, 553, 652 N.W.2d 851 (2002).]
Plaintiff first contends that the trial court erred by granting defendants' motion for summary disposition on the ground that Curtis was not the "real party in interest" at the time the complaint was filed because she had not yet been appointed plaintiff’s next friend. We agree.
" ‘An action must be prosecuted in the name of the real party in interest ....’ "
Maki Estate v. Coen , 318 Mich. App. 532, 539, 899 N.W.2d 111 (2017), quoting MCR 2.201(B). " ‘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.’ "
In re Beatrice Rottenberg Living Trust 300 Mich. App. 339, 356, 833 N.W.2d 384 (2013), quoting Hofmann v. Auto Club Ins. Ass'n , 211 Mich. App. 55, 95, 535 N.W.2d 529 (1995). The real-party-in-interest rule "recognizes that litigation should be begun only by a party having an interest that will [ensure] sincere and vigorous advocacy." Kalamazoo v. Richland Twp. , 221 Mich. App. 531, 534, 562 N.W.2d 237 (1997). The rule also protects the defendant by "requir[ing] that the claim be prosecuted by the party who by the substantive law in question owns the claim asserted" against the defendant. Beatrice Rottenberg Living Trust , 300 Mich. App. at 356, 833 N.W.2d 384 (quotation marks and citation omitted).
There can be no serious dispute that plaintiff owns the medical malpractice claim arising from injuries allegedly resulting from his surgery. Michigan courts have held that when a plaintiff acts on behalf of a minor in a representative capacity, the cause of action still belongs to the minor. See, e.g., Gumienny v. Hess , 285 Mich. 411, 414, 280 N.W. 809 (1938) (); Walter v. City of Flint , 40 Mich. App. 613, 615, 199 N.W.2d 264 ...
To continue reading
Request your trial
- Everson v. Williams
-
Welch v. Welch (In re Tansey)
... ... de novo." Olin by Curtis v Mercy Health Hackley ... ...
-
W. Bloomfield Charter Twp. v. Alkatib
...638 (1999) (citation omitted). This Court reviews interpretations of court rules de novo. Olin by Curtis v Mercy Health Hackley Campus, 328 Mich.App. 337, 344; 937 N.W.2d 705 (2019). "If the language of the court rule is clear and unambiguous, then no further interpretation is required or a......