Piatkowski v. Mok

• Decision Date: 18 January 1971
• Docket Number: Docket No. 7142,No. 1,1
• Citation: 185 N.W.2d 413,29 Mich.App. 426
• Parties: Philip PIATKOWSKI and Helen Piatkowski, and Kevin Piatkowski, and Philip Piatkowski, Jr., by their Next Friend Phillip Piatkowski, Plaintiffs-Appellants, v. Ira E. MOK, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 413

185 N.W.2d 413

29 Mich.App. 426

Philip PIATKOWSKI and Helen Piatkowski, and Kevin Piatkowski, and Philip Piatkowski, Jr., by their Next Friend Phillip Piatkowski Plaintiffs-Appellants, v. Ira E. MOK, Defendant-Appellee.

Docket No. 7142.

Court of Appeals of Michigan, Division No. 1.

Jan. 18, 1971.

Released for Publication April 9, 1971.

A. Robert Zeff, Zeff & Zeff, Detroit, for plaintiffs-appellants.

James A. Markle, Detroit, for defendant-appellee.

Before R. B. BURNS, P.J., and LEVIN and CHURCHILL, ^* JJ.

R. B. BURNS, Presiding Judge.

Although I am in complete agreement with Judge Churchill's decision to remand this case to the trial court, I must take issue with his construction of GCR 1963, 518.3 Judge Churchill concedes that his interpretation is contrary to that adopted by the federal courts in their analysis of Rule 54(c) of the Federal Rules of Civil Procedure. ¹ His interpretation is also contrary to the rule's purpose as envisioned by the Joint Committee on Michigan Procedural Revision. See 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p. 626 (Committee Notes). More importantly Judge Churchill's construction directly conflicts with the express language of the rule.

The language of 518.3, in no uncertain terms, states that a judgment must be based on what is proved rather than on what is pleaded. To base a judgment solely on what is pleaded totally ignores the word 'entitled' ² and the phrase 'even if' contained in GCR 1963, 518.3. ³ The plain meaning of a general court rule should not be ignored by this Court.

We hold the plaintiff may recover a judgment in the amount of his provable damages irrespective of the Ad damnum clause.

The case is remanded for entry of an order granting the motion to amend plaintiff's Ad damnum clause and allowing defendant to amend his answer and defend on the merits of liability.

We do not retain jurisdiction.

CHURCHILL, Judge (concurring in result).

This is a personal-injury auto negligence action, commenced September 22, 1964, three years to the day after the accident. In 1968 plaintiff Helen Piatowski filed a motion to increase her Ad damnum clause to $300,000. The motion was denied 'without prejudice'. Plaintiff, on leave granted, appeals from the order denying the motion.

The trial court's reasons for denial of the motion do not appear in the record nor do we perceive the meaning of the words 'without prejudice' in this context.

GCR 1963, 518.3 provides:

'Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.'

This provision is a verbatim repetition of rule 54(c) of the Federal Rules of Civil Procedure.

The Federal courts have consistently construed rule 54(c) to mean that in contested actions plaintiff's recovery is not limited by the Ad damnum clause. ¹

This was the construction forecast in the Committee Notes to rule 518.3 and by the authors of 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 632 where they said,

'In former Michigan practice it was said a judgment could not exceed the amount requested in the Ad damnum clause, although in practice the problem might have been side stepped by permitting an amendment to conform the pleadings to the proofs * * * The new rule makes it clear that except upon default judgment, the court has power to enter judgment in an amount greater than that demanded, if proved.'

If the rule is so construed the denial of the motion is indeed nonprejudicial to plaintiff. I do not, however, adopt this construction. ² Such a construction would cause unlimited mischief in excess-liability insurance situations and it would discourage non-contests of liability.

The motion contains the allegation that plaintiff's physical condition has worsened and that the amount sued for will not adequately compensate her. The motion was accompanied by an 'information and belief' affidavit of her attorney which does not disclose the source of his information or belief. Attached to the appellant's brief on appeal is a copy of a letter from a physician dated October 14, 1968, which tends to substantiate plaintiff's claim of serious injury. It does not, however, appear in the record that this letter was ever submitted to the trial judge for his consideration.

Defendant filed a pleading objecting to the increase of the Ad damnum clause from $25,000 to $300,000. The Ad damnum clause in the original complaint was for $50,000.

In the concise statement of proceedings and fact prepared by plaintiff's attorney the proposal is to increase the Ad damnum clause from $25,000 to $150,000. In her brief they say that she wants to increase the claim from $25,000 to $300,000.

By his answer defendant pled no contest as to liability. In his brief on appeal defendant suggests that a typical insurance excess-liability problem would be created by the increase. He asserts that he would want to defend the action on the merits of liability if the Ad damnum clause is increased and he suggests that discovery would be difficult after so many years. He does not, however, disclose the limits of coverage nor does he show that further discovery would be required which is unavailable.

In Burg v. B & B Enterprises, Inc. (1966), 2 Mich.App. 496, 500, 140 N.W.2d 788, 790, this Court, reversing the trial judge's decision to deny leave to amend a pleading, said:

'(W)e believe that the language of GCR 1963, 118.1, 'Leave shall be freely given when justice so requires,' imposes a limitation on the discretion of the court necessitating a finding that justice would not be served by the amendment.'

This is totally consistent with the Supreme Court's statement in Phillips v. Rolston (1965), 376 Mich. 264, 268, 137 N.W.2d 158, that amendments are not allowed when prejudice would result and when the substantial rights of the parties would be affected adversely.

The delaying effect, if any, of granting a motion to amend after pretrial conference is a factor for consideration in the exercise of discretion, Simonelli v. Cassidy (1953), 336 Mich. 635, 59 N.W.2d 28.

GCR 1963, 517.1 requires trial judges to make findings of fact and to state conclusions of law in non-jury actions, but most motions are excepted from operation of the rule. The reasons for the rule, explained in the annotation to the rule in 2...