If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ADELA TOMAN, FOR PUBLICATION
November 21, 2023
Plaintiff-Appellant,
v No. 361655
Ingham Circuit Court
CARRIE MCDANIELS, PTA, DANIELLE LC No. 21-000600-NH
SCHUELER, COTA-L, and SPARROW
HOSPITAL,
Defendants-Appellees.
Before: RIORDAN, P.J., and BORRELLO and BOONSTRA, JJ.
BORRELLO, J. (dissenting)
Although memories have seemingly faded, in March 2020, the entire world faced a public
health crisis the likes of which no one alive had ever endured. During the first four months of the
COVID-19 emergency, i.e., the period during which the relevant emergency orders were in effect,
approximately 125,000 Americans died of the disease1 and hospitals were overflowing with critical
care patients. Little was understood about the nature of the disease, its treatment or its mechanism
of spread. A “stay at home” order issued by Governor Whitmer was in effect from March 23, 2020
to June 1, 2020. Business activity and social life all but disappeared. Family members could not
visit their sick and dying relations as hospitals, nursing homes and retirement communities barred
all non-essential visitors. Retail operations and restaurants were closed. Millions were laid off
1
Woolf et al., Excess Deaths From COVID-19 and Other Causes, March-July 2020, JAMA
(accessed November 14, 2023)
(“Of the 225,530 excess deaths [from March 1 through August 1, 2020], 150,541 were attributed
to COVID-19.”); Pew Research Center, The Changing Political Geography of COVID-19 Over
the Last Two Years (accessed November 14, 2023) (roughly
125,000 deaths in the United States from March 2020 through June 2020).
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from work as much of the economy was simply closed down.2 Virtually no one came to their
office for as long as a year. Schools were closed. The state adopted a number of sweeping
emergency public health measures.3
In the first days of the pandemic emergency, the Michigan Supreme Court had to determine
what steps to take to assure public health and comply with the Governor’s emergency declaration,
while also assuring that no one’s right to access the courts would be limited as a result. 4 It did so
by adopting Administrative Order (AO) No. 2020-3, AO 2020-3 as amended, and AO No. 2020-
18. The last of these ordered that the emergency period end as of June 20, 2020 and it directed
how statutes of limitations were to be calculated once the emergency period was over.
With the rescission of the emergency orders in AO 2020-18, disputes arose about whether
the Supreme Court (1) went beyond its constitutional authority in issuing the emergency orders,
and (2) how to calculate the statute of limitations post-emergency. Both of these questions are
now before our Supreme Court. That Court has granted leave in Carter v DTN Mgt Co, 511 Mich
1025 (2023), and has ordered oral argument on the application in Armijo v Bronson Methodist
Hosp, 511 Mich 1026 (2023). Thus, it is ultimately the Supreme Court—both as drafter of the
orders and the state’s final legal authority—that will ultimately determine what that order means
and how it should be applied.
In the meantime, since this Court decided Carter v DTN Mgt Co, ___ Mich App ___, ___;
___ NW2d ___ (2023) (Docket No. 360772), nearly one year ago, this Court and trial courts have
consistently held that the AOs tolled the relevant statute of limitations for all matters that arose
prior to or during the emergency period. Carter based its conclusion largely on the plain text of
the emergency orders, particularly AO 2020-18. All three AOs made clear that they applied to
“the commencement of all civil and probate case types,” (emphasis added), not merely to those
cases in which the limitations period expired during the emergency period. And AO 2020-18 is
of particular importance since it was in that order—and only that order—in which the Supreme
Court provided explicit directions as to how to calculate the limitations period following the end
of the emergency period. That AO provided in pertinent part:
2
In March 2020, national unemployment claims soared from 281,000 claims just before the
emergency began to 3.3 million by March 26. Lexi Lonas, The Hill, The COVID-19 shutdown: A
timeline of how the pandemic changed the US economy (posted May 5, 2022) (accessed November 13, 2023).
3
In addition to the “stay at home” order, other measures taken during the period in which the
Supreme Court’s administrative orders were in effect include: the closing of K-12 schools, mask
mandates, the banning of gatherings greater than 10 people, a ban on dine-on eating, limitations
on non-essential travel, and many more. Michigan COVID-19 Timeline
(accessed on November 12, 2023).
4
The Administrative Orders did not simply reflect that most courts were closed during much of
the early period of the pandemic. It also reflected that with most activities of business and human
interaction shut down for several months such that the typical non-court activities of pre-suit
investigation, discovery and virtually any litigation activity could not realistically proceed.
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For time periods that started before Administrative Order No. 2020-3 took effect,
the filers shall have the same number of days to submit their filings on June 20,
2020, as they had when the exclusion went into effect on March 23, 2020. For
filings with time periods that did not begin to run because of the exclusion period,
the filers shall have the full periods for filing beginning on June 20, 2020. [AO
2020-18.]
The text is clear. For all cases—that arose before as well as those that arose during the
emergency period—the days between March 23, 2020, and June 20, 2020, were not to be counted
in calculating the limitations period. First, as to cases that arose before the AOs, AO 2020-18
requires that “the filers shall have the same number of days to submit their filings on June 20, 2020
as they had when the exclusion went into effect on March 23, 2020.” And for those cases with
time periods that did not begin to run because of the exclusion period, “the filers shall have the
full periods for filing beginning on June 20, 2020.”
The majority insists that the only limitations periods that are subject to the emergency
tolling are those that would have expired during the period. However, the plain language of the
AO 2020-18 makes clear that such a conclusion is erroneous. By definition, cases that arose during
the emergency period, i.e., those whose “time periods that did not begin to run because of the
exclusion period” could not possibly have expired during the emergency period. Yet, according
to the majority, we should ignore the plain language of AO 2020-18 and count the excluded days
even though such filers, by the terms of the order, are entitled to “the full periods for filing
beginning on June 20, 2020.” For example, a case arising on April 1, 2020, the days from April
1, 2020 to June 20, 2020 could not be counted. The majority all but ignores AO 2020-18, and
instead focuses solely on its interpretation of the word “during” in AO 2020-3. AO 2020-3 reads:
For all deadlines applicable to the commencement of all civil and probate
case-types, including but not limited to the deadline for the initial filing of a
pleading under MCR 2.110 or a motion raising a defense or an objection to an initial
pleading under MCR 2.116, and any statutory prerequisites to the filing of such a
pleading or motion, any day that falls during the state of emergency declared by the
Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines pertaining to case initiation
and the filing of initial responsive pleadings in civil and probate matters during the
state of emergency declared by the Governor related to COVID-19. [AO 2020-3.]
As noted, the majority reads this order so as to apply only to deadlines that occurred during
the emergency period. In doing so, it ignores the first paragraph of the order which states that
“[f]or all deadlines applicable to the commencement of all civil and probate case-types . . . any
day that falls during the state of emergency declared by the Governor related to COVID-19 is not
included for purposes of MCR 1.108(1).” (Emphasis added). This paragraph contains no language
restricting its scope to only those deadlines that would fall within the emergency period.
Undaunted, the majority focuses exclusively on the second paragraph’s use of the phrase “during
the state of emergency” and opts to conclude that this ambiguous phrase means that no deadlines
other than those that occur in the emergency period are affected. However, such analysis fails to
explain how its interpretation of this phrase is consistent with the first paragraph since that
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paragraph speaks to all cases and makes clear that “any day that falls during the state of emergency
is not included.” And the analysis utterly fails to explain how its restrictive interpretation of AO
2020-3 is consistent with the plain language of AO 2020-18.
Rather than addressing the unambiguous text of AO 2020-18, the majority opinion seems
obsessed with whether Carter was properly decided and whether, it should have followed Armijo
v Bronson Methodist Hospital, ___ Mich App ___; ___ NW2d ___ (2023) (Docket Nos. 358728,
358729). However, Carter properly distinguished Armijo. The majority insists that Armijo
requires us to hold that only deadlines that expired during the emergency period. However, as
noted in Carter, there is no analysis of that issue in the Armijo opinion. See Carter, ___ Mich App
at __ n 3, slip op at 5. Armijo’s analysis addressed only the AOs’ effect on the notice-of-intent
(NOI) waiting period. It concluded that the NOI waiting period “continued to run during the state
of emergency,” Armijo, ___ Mich App at ___; slip op at 7, and any reasonable reading of the
opinion makes clear that the basis for the decision was that the administrative orders do not toll
NOI waiting periods. Further, the panel in Armijo only discussed its interpretation of AO 2020-3
and AO 2020-3 as amended; it failed to account for the language in 2020-18 on which Carter
relied.5
Here, the author, hangs his hat on one phrase in Armijo’s final paragraph, in which the
opinion suddenly turned to a different issue that was neither necessary to the decision nor analyzed
in the opinion. In the final paragraph of the opinion, Armijo states that in addition to the lack of
NOI tolling, “the AOs only applied to deadlines which took place during the state of emergency.”
Armijo, ___ Mich App at ___; slip op at 7. No further explanation as to why, having decided the
case based on the running of the NOI period, the Armijo panel—in this single conclusory phrase—
offered a second, wholly unanalyzed alternative basis for its ruling. Carter properly and explicitly
held that Armijo settled the question of whether the AOs tolled pre-suit waiting periods, but that
Armijo’s single isolated reference to the far broader question about how the limitations periods
were to be calculated following expiration of the emergency period was dicta. Carter did not—as
the majority suggests —fail to follow Armijo. It simply recognized the difference between a “rule
of law” and dicta.6 In expressing a view that limitations periods that expired within the emergency
5
Armijo did recount the text of AO 2020-18 in its “Background” section, but provided no analysis
of it anywhere in the opinion even though it was the only one of the AOs that provided instruction
on how to calculate limitations periods following the emergency period.
6
“A panel of the Court of Appeals must follow the rule of law established by a prior published
decision of the Court of Appeals” issued after 1990. MCR 7.215(J)(1). As we recently explained,
A “rule of law” is a “substantive legal principle,” according to Black’s Law
Dictionary (11th ed.). The rule of law typically justifies the “holding” in a case,
which is defined as a “a court’s determination of a matter of law pivotal to its
decision.” Freed v Thomas, 976 F3d 729, 738 (CA 6, 2020). In contrast, our
Supreme Court has described “dicta” as “[s]tatements and comments in an opinion
concerning some rule of law or legal proposition not necessarily involved nor
essential to determination of the case in hand” that “lack the force of an
adjudication.” Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713
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period were extended, Armijo went well beyond what was necessary to decide the case, a point
emphasized by the fact that the Armijo opinion offered no reasoning in support of this isolated and
sweeping statement. I do not view Carter’s rejection of that dictum to have been incorrect, let
alone “lawless” as the majority suggests.
The authoring judge in the instant case, authored the opinion in Compagner v Angela
Burch, PA-C, ___ Mich App ___; ___ NW2d ___ (2023) (Docket No. 359699).7 In that case,
NW2d 750 (2006) (quotation marks and citations omitted). In other words, dicta is
not necessary to the determination of the rule of law announced in an opinion.
[Michigan Occupational Safety and Health Admin v Yoder Family Farm, 343 Mich
App 77, 86; ___ NW2d ___ (2022).]
7
It is important to note that Compagner was not a unanimous decision. Judge K.F. Kelly, writing
in dissent, initially tried to point out the author’s imprudence, writing in relevant part:
[T]he fundamental issue with the majority's reasoning [is that] it is backward-
looking, examining the effect of AO 2020-3 from the benefit of two years of
experience and hindsight. However, at the time AO 2020-3 was issued in March
2020, no one knew the breadth of the impact that COVID-19 would have on our
court system. Many presumed the pandemic would run its course in a matter of
days or weeks. Moreover, and perhaps more importantly, the courts across the state
were simply unprepared to immediately facilitate faceless, electronic filings or
remote hearings. While the majority observes that Ottawa County was a leader in
the move toward electronic filings, the Michigan Supreme Court was, presumably,
concerned not only with Ottawa County, but every county and court system within
the state. It is also noteworthy that the majority carefully avoids making the
sweeping assertion that every court was open to the public during the state of
emergency, merely stating that “courts largely remained open during the state of
emergency” and that trial courts “generally continued to accept court filings.”
(Emphasis added.) In other words, what of the courts that were not open, or that,
for some period of time, could not accept court filings? I must presume that the
Supreme Court, when issuing AO 2020-3, was considering those corner cases when
crafting the order.
Contrary to the majority, I would conclude that AO 2020-3 was a proper exercise
of the Michigan Supreme Court's constitutional power. The ability for litigants to
access the courts was at issue, and the Court had a responsibility to ensure access.
But even if I were to agree that AO 2020-3 was unconstitutional—it was not—I
also disagree with the majority's remedy should Carter be overruled. According to
the majority, “but for Carter, we would reverse and remand for entry of summary
disposition in favor of defendants.” Doing so would act as a great injustice to the
lawyers and litigants around the state legitimately acting in reliance on orders
issued by the Supreme Court in a time of chaos and uncertainty. In other words,
under the majority's reasoning, AO 2020-3 should have been identified by every
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decided about six months after Carter, he criticized Carter but did not refuse to follow it, stating
in the second sentence of the opinion, “Because we are bound by this Court’s decision in Carter . . .
, we affirm.” Id. at ___; slip op at 2. Further, the Compagner panel requested a conflict panel as
to Carter, but only as to the constitutionality authority question and not as to the proper application
of the AOs in relation to the statute of limitations. See id. The reasons for limiting the request are
not clear, but had Carter been seen as erroneous and inconsistent with Armijo, such a request could
easily have been made. 8 In any event, the request for a conflict panel was declined by the full
Court, making Carter binding precedent.
It is now nearly a year since Carter and the author of Compagner appears to have had
second thoughts about his failure to include the application of the AOs in the request a conflict
panel. And now that the Supreme Court has granted leave in Carter, a conflict panel on the time
calculation issue cannot be requested. MCR 7.215(J)(3)(b).9 Rather than respecting this rule and
awaiting a decision from the Supreme Court, the majority seeks to declare that Carter is null and
void.
I believe it fair criticism to inquire why the majority refuses to wait for a final ruling from
our Supreme Court. Examination of the question begins with citing to the majority’s only stated
reason for not waiting for the Supreme Court to decide these cases, and instead to defy
MCR 7.215(C)(2): “we must decide which decision is binding on us in this matter.” But that
decision was made by this Court when it rejected the author’s request for a special panel. And, if
that were really the reason Compagner would not have agreed that Carter was controlling. Further,
if the majority is to have any semblance of consistency, why instead did the majority’s author,
allowing months to pass during which Carter was followed and when a conflict panel can no
longer be sought and the Supreme Court is about to address the question, invite chaos by creating
two different lines of cases for trial courts and attorneys to struggle over. The majority says they
take this step because they are “compelled” to do so. However, the Compagner panel was not
similarly compelled.10
lawyer as unconstitutional and, as a result, would be obligated to not act in reliance
on it. I cannot countenance a decision that would, in effect, say lawyers were
perhaps constitutionally ineffective by relying on orders issued by the highest court
in this state, whose responsibility it is to administer the state's court system.
Compagner, ___ Mich App at 20.
8
If a litigant failed to seek review of an issue, we would conclude that the issue had been forfeited.
Indeed, a litigant who affirmatively agreed that a prior case controlled, would have waived the
issue altogether.
9
The rule provides that “No [conflict] panel shall be conducted a special panel shall not be
convened if at the time the judges are required to be polled, the Supreme Court has granted leave
in the controlling case.”
10
The majority also observes that it writes because “we believe that the Supreme Court would
benefit from the analysis set forth in this opinion.” That may be so, but it would have been equally
available to the Supreme Court had the analysis been included as a concurrence following Carter,
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In any event, it is important to note that the majority miscomprehends Carter. Carter
correctly distinguished Armijo because Armijo involved a tolling of a pre-suit waiting period while
Carter involved the tolling of a statute of limitations. Moreover, Carter is directly on point and
dispositive of this matter. Just as in Carter, plaintiff’s statutory deadline was set to expire after
the 102-day emergency period. However, as stated in Carter, our Supreme Court excluded these
102 days even for those whose deadlines did not expire within the emergency period. Accordingly,
the entirety of the 102 days was excluded from calculating the two-year statutory limitations period
under MCR 1.108. This meant that, when plaintiff filed her NOI on December 11, 2020, she did
not have only one day remaining on the statutory limitations period. Rather, she had 1 + 102 days
remaining because those 102 days between March 10, 2020 and June 20, 2020, were excluded.
The NOI tolled the statutory limitations period for 182 days, which meant that the statutory
limitations period began to run again on June 11, 2021. At this point, plaintiff had 103 days
remaining, which meant that she had until September 22, 2021, to file her complaint. Therefore,
because plaintiff filed her complaint on September 21, 2021, her complaint was timely.
It is clear that Carter controls our decision. What gives me great concern about the
majority’s opinion is that they have egregiously surmised that neither Carter or the vote rebuffing
their call for a special panel was entitled to anything other than their disdain. Such disdain has
created an opinion which allows any two members of this Court to be able to cite to this case and
by doing so, overrule binding published precedent. This is the real legacy of the majority’s
decision, discarding the rule of law, the doctrine of stare decisis and inviting chaos for our trial
courts and attorneys. For these reasons, I vigorously dissent.
/s/ Stephen L. Borrello
but setting out its disagreements with that decision. The Supreme Court reads our Court’s
concurrences and dissents as well as majority opinions.
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