Al-Shimmari v. Detroit Medical Center

• Citation: 731 N.W.2d 29,477 Mich. 280
• Decision Date: 02 May 2007
• Docket Number: Docket No. 130078.
• Parties: Abdul AL-SHIMMARI, Plaintiff-Appellee/Cross-Appellant, v. The DETROIT MEDICAL CENTER, Harper-Hutzel Hospital, University Neurosurgical Associates, P.C., and Setti Rengachary, M.D., Defendants-Appellants/Cross-Appellees.
• Court: Michigan Supreme Court

731 N.W.2d 29

477 Mich. 280

Abdul AL-SHIMMARI, Plaintiff-Appellee/Cross-Appellant, v. The DETROIT MEDICAL CENTER, Harper-Hutzel Hospital, University Neurosurgical Associates, P.C., and Setti Rengachary, M.D., Defendants-Appellants/Cross-Appellees.

Docket No. 130078.

Supreme Court of Michigan.

May 2, 2007.

[731 N.W.2d 30]

Law Offices of Andre M. Sokolowski, P.C. (by Andre M. Sokolowski), Law Offices of Michael S. Daoudi, P.C. (by Michael S. Daoudi), and Turner & Turner, P.C. (by Matthew L. Turner), Southfield, Southfield, Southfield for the plaintiff.

Saurbier & Siegan, P.C. (by Debbie K. Taylor, Scott A. Saurbier and Bart P. O'Neill), St. Clair Shores, for the defendants.

MARKMAN, J.

We heard oral argument on whether to grant the application and cross-application for leave to appeal in order to consider whether MCR 2.116(I)(3) requires a trial court to conduct a jury trial to determine whether service of process was sufficient, whether a general appearance by a defendant waives an objection to the sufficiency of service of process under MCR 2.116(C)(3), and whether a plaintiff may proceed with a vicarious liability claim against various medical entities after the claim against the allegedly negligent doctor has been dismissed. Because we conclude that MCR 2.116(I)(3) does not require a jury trial to determine whether service of process was sufficient, we reverse the part of the Court of Appeals judgment that required such a trial. Because MCR 2.116(D)(1) states that a party waives an objection to service of process under MCR 2.116(C)(3) unless the objection is raised in a party's first motion or responsive pleading, we further conclude that a general appearance does not waive objections to service of process under MCR 2.116(C)(3) if the party properly raises such objections under MCR 2.116(D)(1). Accordingly, we reverse the part of the Court of Appeals judgment that held otherwise. Finally, because the dismissal of the claim against the doctor based on the expiration of the period of limitations operated as an adjudication on the merits under MCR 2.504(B)(3), we reverse the part of the Court of Appeals judgment that allowed the suit to proceed on the basis of vicarious liability against defendant medical entities.

I. FACTS AND PROCEDURE

Plaintiff Abdul Al-Shimmari was treated by defendant Dr. Setti Rengachary for back pain. After examining the plaintiff, Rengachary recommended that plaintiff undergo back surgery, and he performed the surgery on September 17, 2001. After the surgery, plaintiff continued to feel pain, and in July 2002 a different doctor concluded that plaintiff had suffered nerve injury as a result of the surgery.

Because the surgery took place on September 17, 2001, the two-year period of limitations expired on September 17, 2003. MCL 600.5805(6).¹ On September 16, 2003, plaintiff served a notice of intent to bring this action on defendants Rengachary, Harper-Hutzel Hospital, Detroit Medical Center, and University Neurosurgical Associates, P.C. The notice of intent tolled the statute of limitations for 182 days, until March 16, 2004. MCL 600.5856(d). Plaintiff then had until March 17, 2004, to file a complaint properly. At the time this complaint was filed, MCL 600.5856 stated:

The statutes of limitations or repose are tolled:

(a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant.²

Therefore, plaintiff had to serve the defendants by March 17, 2004. Plaintiff filed the complaint charging medical malpractice on March 10, 2004, alleging negligence, battery, and lack of informed consent against all defendants,³ and vicarious liability against Harper-Hutzel Hospital, Detroit Medical Center, and University Neurosurgical Associates. On April 6, 2004, defendants' counsel signed a stipulation for the admission of plaintiff's medical records. This stipulation was made on behalf of all defendants, including Rengachary, in exchange for an extension to file responsive pleadings.

The parties dispute when Rengachary was served. On April 16, 2004, Rengachary filed two separate motions for summary disposition. In the first motion, Rengachary sought dismissal under MCR 2.116(C)(2), (3), and (8), claiming that he had not been properly served pursuant to the applicable court rules before the expiration of the period of limitations. In the second motion, Rengachary sought summary disposition under MCR 2.116(C)(7) and (8), alleging that he had not been served within the statute of limitations period. Rengachary claimed that he was not served until March 18, 2004, after the statute of limitations period had run. Plaintiff disputed Rengachary's contentions and submitted a proof of service stating that Rengachary had been served on March 11, 2004, within the statute of limitations period.

To determine when service of process occurred, the trial court ordered that an evidentiary hearing be held. At the hearing, plaintiff's process server testified that on March 11 she found Rengachary, who was wearing a white coat, at his place of work, inquired if he was Rengachary, and served him when he responded, "Yes." However, the process server did not obtain Rengachary's signature, and did not sign a proof of service until April 9, 2004. In response, Rengachary denied that he had been served on March 11, testified that he did not dress in a white coat at work, and stated he had not been served until March 18. On the basis of this testimony, the trial court concluded that Rengachary had not been served until March 18 and granted him summary disposition with prejudice under MCR 2.116(C)(7). The remaining defendants then moved for summary disposition of the vicarious liability claims, arguing that because Rengachary had been dismissed, the remaining defendants could not be held vicariously liable for his actions. The remaining defendants also filed a supplemental brief, alleging that the claims of vicarious liability should also be dismissed under MCR 2.116(C)(10) because plaintiff had not shown that Rengachary was an agent of the hospital. The trial court agreed that the dismissal of the claims against Rengachary extinguished the claims against the remaining defendants and granted summary disposition for the remaining defendants under MCR 2.116(C)(7).

Plaintiff appealed by leave granted the order granting summary disposition in favor of Rengachary and as of right from the order granting summary disposition for the remaining defendants, and the appeals were consolidated. The Court of Appeals reversed the orders of the trial court and remanded for further proceedings. Unpublished opinion per curiam, issued November 1, 2005, 2005 WL 2861069, (Docket Nos. 259363 and 262655). The Court of Appeals held that plaintiff was entitled to a jury trial on the disputed question of when the defendant doctor was served, and concluded that the claims against the other defendants should not have been dismissed because the grant of summary disposition to Rengachary had not been on the merits of the claims. The Court of Appeals also held that defendants' attorneys' actions with regard to the stipulation were not sufficient to constitute a general appearance and also held that a party may waive the right to object to service by entering a general appearance and contesting the suit on the merits. Defendants sought leave to appeal and plaintiff sought leave to appeal as cross-appellant.⁴ This Court directed the clerk to schedule oral argument on whether to grant the applications or take other peremptory action. 475 Mich. 861, 714 N.W.2d 291 (2006).

II. STANDARD OF REVIEW

This Court reviews a trial court's grant or denial of summary disposition de novo. Cameron v. Auto Club Ins. Ass'n, 476 Mich. 55, 60, 718 N.W.2d 784 (2006). The interpretation of court rules is a question of law, which is reviewed de novo. Haliw v. Sterling Hts., 471 Mich. 700, 704, 691 N.W.2d 753 (2005).

III. ANALYSIS

A. TRIAL BY JURY

Defendant Rengachary moved for summary disposition under MCR 2.116(C)(2), (3), (7), and (8).⁵ MCR 2.116(C)(3) specifies that summary disposition should be granted if "[t]he service of process was insufficient," and MCR 2.116(C)(7) specifies that summary disposition should be granted if "[t]he claim is barred because of . . . statute of limitations . . . ." Plaintiff argues that because Rengachary moved for summary disposition under MCR 2.116(C)(7), and because plaintiff timely moved for a jury trial, plaintiff was entitled under MCR 2.116(I)(3) to a jury trial on the issue of when service of process occurred. MCR 2.116(I)(3) states:

A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on subrules (C)(1) through (C)(6), or if the motion is based on subrule (C)(7) and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury. [Emphasis added.]

Thus, MCR 2.116(I)(3) states that a trial court may hold a trial to determine disputed issues of fact in motions based on MCR 2.116(C)(1) through (7). By providing that "[a]n immediate trial may be ordered if the grounds asserted are based on subrules (C)(1) through (C)(6)," and then establishing the circumstances under which a jury trial would be required if the grounds asserted are based on subrule (C)(7) MCR 2.116(I)(3) indicates that a trial court has the discretion to conduct a bench trial to resolve disputed factual questions relating to motions based on (C)(1) through (C)(6). However, a jury trial is required when: (1) the motion...