MIDURA
v.
LINCOLN CONSOLIDATED SCHOOLS
Docket No. 52747.
Michigan Court of Appeals.
Decided November 30, 1981.Burgoyne & Pratt, P.C., for plaintiff.
Thrun, Maatsch & Nordberg, P.C. (by Donald J. Bonato), for defendant.
Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN,[*] JJ.
D.R. FREEMAN, J.
Plaintiff appeals by right from the denial of her motion for leave to amend her complaint. Plaintiff moved to amend her complaint following an order granting defendant's motion for summary judgment for failure to state a claim. GCR 1963, 117.2(1).
On February 22, 1979, plaintiff filed a three-count complaint alleging that defendant had denied her procedural due process rights by terminating her employment as a school bus driver. Defendant moved for summary judgment for failure to state a claim. On April 11, 1979, a hearing was held on this motion. Both parties filed supporting briefs and, on November 26, 1979, the trial court granted defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1). Plaintiff does not challenge the correctness of that decision on appeal. Plaintiff then secured new counsel and moved for a new hearing and for leave to amend her complaint on December 17, 1979. A hearing was held on that motion and plaintiff filed a memorandum in support of her position along with a proposed amended complaint. This proposed amended complaint contained only one count, alleging *561 that in terminating plaintiff's employment defendant violated the terms of a collective-bargaining agreement and denied plaintiff's procedural and substantive due process rights.
Although he found that the amended complaint stated a cause of action, the trial judge denied the motion for leave to amend, stating:
"It is not so determinative in this case that the request for leave to amend the pleadings comes after the final judgment, because the final judgment was granted on a motion for summary dismissal before trial, that is to say, before any significant commitment of resources by the party opposing the motion or by the court. What is determinative is the risk of increased liability for back wages that would be borne by the defendant under plaintiff's claim for pay as if she had not been discharged. If plaintiff prevails, every day of delay before that judgment is another day's wages that defendant will have to pay plaintiff without any work from plaintiff in return. But for plaintiff's refusal to make a timely amendment to the pleadings, defendant could not have been subjected to increased liability of at least five months back wages.
"Pursuant to GCR 117.3 the court finds that the increased potential liability for back wages shows that the proposed amendment is not justified."
We agree with the trial court's holding that entry of a grant of summary judgment does not preclude amendment of the complaint. Plaintiff could amend her pleadings, but only by leave of the court. Schimmer v Wolverine Ins Co, 54 Mich. App. 291, 298; 220 NW2d 772 (1974), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 415.
The rule governing amendment of pleadings, GCR 1963, 118.1, was designed to facilitate the amendment of pleadings except where prejudice to *562 the opposing party would result. Ben P Fyke & Sons v Gunter Co, 390 Mich. 649, 656; 213 NW2d 134 (1973). In Fyke & Sons, the Court held that denial is justified only "for particularized reasons":
"In the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, as the rules require, be `freely given.' Foman v Davis, 371 U.S. 178, 182; 83 S. Ct. 227, 230; 9 L. Ed. 2d 222, 226 (1962)." Fyke & Sons, supra, 656.
Delay in seeking amendment, without a finding of bad faith or prejudice caused by the delay, does not justify denial of a motion to amend. Fyke & Sons, supra, 663-664. The possible impact of an amendment on the outcome of a case is not the kind of prejudice contemplated by GCR 1963, 118.1. The Fyke & Sons Court relied on the Committee Comment accompanying Rule 18 for the following definition of the word "prejudice" in this context:
"`Prejudice' refers to matter which would prevent a party from having a fair trial, or matter which he could not properly contest, e.g., when surprised. It does not refer to the effect on the result of the trial otherwise." Fyke & Sons, supra, 657.
The possible prejudice must stem from the fact that new allegations are offered late rather than in the original pleadings and not from the fact that the opponent may lose his case on the merits if the amendment is allowed. Fyke & Sons, supra, 658. The discretion invested in trial judges under the standard "leave shall be freely given when *563 justice so requires" is not boundless. This language imposes a limitation on the discretion of the court necessitating a finding that justice would not be served by an amendment to pleadings. The allowance of an amendment is not an act of grace, but a right of a litigant who can show that an amendment will not work an injustice on the opposing party. Fyke & Sons, supra, 659.
Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.