Walters v. Nadell
| Decision Date | 25 June 2008 |
| Docket Number | Docket No. 131479. |
| Citation | 481 Mich. 377,751 N.W.2d 431 |
| Parties | Robert WALTERS, Plaintiff-Appellant, v. Nathan NADELL, Defendant-Appellee. |
| Court | Michigan Supreme Court |
The issue in this case is whether plaintiff may avail himself of the tolling provision of the Servicemembers Civil Relief Act (SCRA)1 when he failed to raise that provision in response to a motion for summary disposition by defendant. We hold that he may not. In lieu of granting leave to appeal, MCR 7.302(G)(1), we affirm the judgment of the Court of Appeals, but for a different reason. We vacate that portion of the Court of Appeals judgment holding that the SCRA tolling provision is discretionary; the tolling provision is mandatory. We hold, however, that the Court of Appeals did not err by refusing to consider the issue because the tolling provision may be waived if it is not raised in the trial court.
Plaintiff, Robert Walters, was involved in an automobile accident with defendant, Nathan Nadell, on May 11, 2001. Plaintiff filed a complaint on February 26, 2004, that alleged that defendant was negligent.2 Plaintiff was unable to serve defendant before his original and second summonses expired because defendant was serving in the military. The period of limitations for plaintiff's action expired while he was attempting to perfect service of process.3
On October 21, 2004, plaintiff filed a second, separate complaint against defendant, raising the same claims against defendant as those in the first complaint. Plaintiff was issued a summons for the second action that expired on January 20, 2005.4 Defendant was served with the summons and complaint on December 10, 2004, at Fort Benning, Georgia. Defendant filed a motion seeking dismissal with prejudice on the ground that the period of limitations had expired before plaintiff filed his complaint for the second action. Plaintiff responded to defendant's motion, arguing that the period of limitations was tolled pursuant to MCL 600.5853. The trial court granted summary disposition in favor of defendant and entered an order dismissing plaintiff's complaint with prejudice.
Plaintiff appealed, arguing that the period of limitations was tolled under MCL 600.5853. Plaintiff also argued, for the first time, that the tolling provisions of the SCRA required reversal. The Court of Appeals affirmed the trial court, albeit on different grounds, and declined to address plaintiff's SCRA argument, holding that it was unpreserved for appellate review and that the tolling provision of the SCRA was discretionary.5
Plaintiff sought leave to appeal in this Court, arguing only that his claims were timely because the SCRA tolled the period of limitations.
We review de novo the grant or denial of summary disposition.6 This case requires us to interpret provisions of the SCRA. Statutory interpretation is a question of law, which we review de novo.7 When interpreting a federal statute, "`[o]ur task is to give effect to the will of Congress. . . .'"8 To do so, "[w]e start, of course, with the statutory text," and "[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning."9 "When the words of a statute are unambiguous, . . . `judicial inquiry is complete.'"10
Plaintiff argues that the Court of Appeals erred by not addressing his SCRA argument because the tolling provision of the SCRA is mandatory and cannot be waived. We first address plaintiffs contention that the tolling provision of the SCRA is mandatory.
The former Soldiers' and Sailors' Civil Relief Act of 1940 underwent significant amendment in 2003 when Congress enacted the SCRA.11 Before the amendment, former 50 USC Appendix 525 provided in part:
The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court . . . by or against any person in military service. . . . [Emphasis added.]
The substantive equivalent of this provision is now in 50 USC Appendix 526(a), which provides in relevant part:
The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court . . . by or against the servicemember. . . . [Emphasis added.]
The United States Supreme Court interpreted former 50 USC Appendix 525 of the Soldiers' and Sailors' Civil Relief Act and held that it was "unambiguous, unequivocal, and unlimited."12 We do not believe that the 2003 amendments inserted any ambiguity into the meaning of the tolling provision, and we similarly hold that current 50 USC Appendix 526 is "unambiguous, unequivocal, and unlimited."
The Court of Appeals opined that the change from "shall not" to "may not" rendered the tolling discretionary. Although the term "shall" is clearly mandatory, and the term "may" is typically permissive "may not," in the context of 50 USC Appendix 526(a), is not permissive. "May not," as it is used in 50 USC Appendix 526(a), has the same meaning and import as "cannot" or its predecessor, "shall not."13 The provision clearly provides that the time that a servicemember is in military service is excluded from any period of limitations.
The Court of Appeals erred in its conclusion that the amendment rendered the tolling provision discretionary. We hold that the tolling provision, 50 USC Appendix 526(a), is mandatory. We must next consider whether the act nonetheless permits waiver of the mandatory tolling provision.
The SCRA makes clear that the servicemember may waive the protections of the act. 50 USC Appendix 517(a) provides that "[a] servicemember may waive any of the rights and protections provided by this Act."14 50 USC Appendix 517(b) requires written waivers for certain actions that arise from disputes involving certain legal instruments,15 but in all other actions the rights and protections of the act may be waived by any other means.16
Waiver under the SCRA is not limited to servicemembers. Congress set out the purpose of the SCRA in 50 USC Appendix 502:
(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.
Thus, in order to strengthen the national defense, Congress enacted the SCRA to temporarily free servicemembers from the burden of participating in litigation. The tolling of periods of limitations in actions against servicemembers serves to "provide for, strengthen, and expedite the national defense" by protecting "the civil rights of servicemembers during their military service." The benefits of the tolling provision to a plaintiff suing a servicemember are merely incidental to the protections that provision provides servicemembers.
Congress enacted the SCRA as a shield to protect servicemembers from having to respond to litigation while in active service, but manifestly indicated that the SCRA's protections may be waived.17 Here, plaintiff is seeking to transform the SCRA into a sword to preserve his lawsuit without having timely invoked its provisions. It would be incongruent with the purpose of the SCRA to permit a servicemember to waive the rights and protections of the act, but bar a nonservicemember from waiving incidental benefits, and thereby provide, without exception, incidental benefits to a nonservicemember. The express purpose of the act is inconsistent with providing more protections to a nonservicemember than a servicemember. Because the purpose of the act is to protect servicemembers, we conclude that Congress did not intend to prohibit waiver by a nonservicemember. Therefore, we hold that the mandatory tolling provision of 50 USC Appendix 526(a) may be waived by a plaintiff asserting a claim against a servicemember during the servicemember's military service.18
The final question we must resolve is whether plaintiff waived the tolling of the period of limitations in this case by failing to raise the tolling provision in the trial court.
Michigan generally follows the "raise or waive" rule of appellate review.19 Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court.20 Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice,21 generally a "failure to timely raise an issue waives review of that issue on appeal."22
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually.23 This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful.24 Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court's attention.25 Trial courts are not the research assistants...
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