Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 1, 2003
ROBERT GLADYCH,
Plaintiff-Appellee,
v No. 119948
NEW FAMILY HOMES, INC.,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
This case concerns the proper interpretation of MCL
600.5856, which sets forth the requirements for tolling the
statute of limitations. We hold that the unambiguous language
of MCL 600.5805 and MCL 600.5856 provides that the mere filing
of a complaint is insufficient to toll the statute of
limitations. In order to toll the limitations period, one
must also comply with the requirements of § 5856. In so
holding, we overrule the erroneous interpretation of § 5856 in
Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971),
overruled in part on other grounds by McDougall v Schanz, 461
Mich 15; 597 NW2d 148 (1999). The decision in Buscaino
ignored the plain language of the statutes and, in so doing,
impermissibly limited the operation of § 5856. Upon
consideration of the effect our decision would have on the
administration of justice, however, we find it appropriate to
give our holding limited retroactive application. Therefore,
this case will apply retroactively only to those cases in
which this specific issue has been raised and preserved. In
all other cases, this opinion will apply prospectively,
effective September 1, 2003.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff alleged that he was injured on January 23,
1996, while employed by defendant. Plaintiff filed his
complaint on January 22, 1999, one day before the three-year
limitations period expired. MCL 600.5805. Plaintiff made
three unsuccessful attempts to serve defendant. On April 20,
1999, a second summons was issued because the original summons
was due to expire. Plaintiff served defendant on May 4, 1999,
within the life of the second summons.
Defendant moved for summary disposition, arguing that the
statute of limitations barred plaintiff’s claim because
plaintiff did not serve defendant or place the summons with an
2
officer for service before the limitations period expired, as
required by MCL 600.5856. The circuit court granted
defendant’s motion, agreeing that plaintiff had not satisfied
the requirements of § 5856 and that therefore the limitations
period was not tolled.
On appeal, the Court of Appeals reversed:
Because plaintiff filed this action before the
three-year limitations period expired, it was
timely filed. Goniwicha v Harkai, 393 Mich 255
. . . (1974); Buscaino[, supra]. Because the
limitations period had not expired before plaintiff
filed suit, the tolling provisions of § 5856 were
not implicated.[1]
Defendant moved for rehearing, arguing that Buscaino
should be overruled. The Court denied defendant’s motion.2
We granted defendant’s application for leave to appeal,
directing the parties “to include among the questions to be
briefed whether Buscaino[, supra], is consistent with the
language of MCL 600.1901 and of MCR 2.101(B) to the effect
that a civil action is commenced by filing a complaint with
the court.”3
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to
1
Unpublished memorandum opinion, issued June 5, 2001
(Docket No. 222343).
2
Unpublished order, entered August 2, 2001 (Docket No.
222343).
3
467 Mich 856 (2002).
3
grant or deny a motion for summary disposition. Wickens v
Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001).
Questions of statutory interpretation are also reviewed de
novo. Oade v Jackson Nat’l Life Ins Co, 465 Mich 244, 250;
632 NW2d 126 (2001).
III. DISCUSSION
When interpreting statutes, our obligation is to discern
and give effect to the Legislature’s intent as expressed in
the statutory language. DiBenedetto v West Shore Hosp, 461
Mich 394, 402; 605 NW2d 300 (2000). If the language is
unambiguous, “we presume that the Legislature intended the
meaning clearly expressed--no further judicial construction is
-
required or permitted, and the statute must be enforced as
written.” Id. “Similarly, courts may not speculate about an
unstated purpose where the unambiguous text plainly reflects
the intent of the Legislature.” Pohutski v City of Allen
Park, 465 Mich 675, 683; 641 NW2d 219 (2002).
MCL 600.5805(1) provides:
A person shall not bring or maintain an action
to recover damages for injuries to persons or
property unless, after the claim first accrued to
the plaintiff or to someone through whom the
plaintiff claims, the action is commenced within
the periods of time prescribed by this section.
MCL 600.1901 defines “commenced” as the filing of a complaint
with the court. Focusing solely on the statutory language, §
5805 simply provides a threshold requirement before the
4
filing of a complaint. In other words, § 5805 provides that
one cannot commence an action unless the complaint is filed
within the periods prescribed by that section.
Section 5805 does not provide, however, that the statute
of limitations somehow becomes irrelevant once the complaint
is filed. In fact, the plain language of the statute extends
no further than the filing of the complaint. If, as
concluded in Buscaino, supra at 481, the mere filing of a
complaint under § 5805 rendered the statute of limitations
irrelevant, the provisions of § 5856 that effectuate the
tolling would be unnecessary. It is precisely because § 5805
pertains only to the filing of the complaint that one must
then turn to § 5856 to determine the effect of the statute of
limitations once the complaint has been filed. Applying §
5856 to all claims as required by the statutory language gives
full effect to both the threshold requirement of § 5805 and
the tolling requirements of § 5856.
Section 5856 provides that the statute of limitations is
tolled only if (1) the complaint is filed and a copy of the
summons and complaint are served on defendant, (2)
jurisdiction is otherwise acquired over defendant, (3) the
complaint is filed and a copy of the summons and complaint in
good faith are placed in the hands of an officer for immediate
service (but no longer than ninety days after the summons and
5
complaint are received by the officer), or (4) if, during the
applicable notice period under MCL 600.2912b, a claim would be
barred by the statute of limitations, but only for the number
of days equal to that in the applicable notice period after
notice is given in compliance with § 2912b.
In other words, if one does not perform any actions
specified by § 5856, the statute of limitations is not tolled
and therefore the period of limitations continues to run after
the complaint has been filed. If the period of limitations
somehow “stopped” at the filing of the complaint, as concluded
in Buscaino, there would be no need to specify tolling
requirements. Buscaino attempted to retain some meaning in §
5856 by limiting its application to situations in which a
prior suit was not adjudicated on the merits, but nothing in
the plain language of § 5856 indicates that the statute should
be limited in such a manner. Rather, the statute provides,
without exception, that “statutes of limitations or repose are
tolled” when one of the four enumerated actions take place.
It follows logically, then, that if one of the four enumerated
actions does not occur, the statutes of limitations or repose
are not tolled. Nothing in the statutory language permits
limiting § 5856 to actions in which a prior suit was not
adjudicated on the merits.
The inherent flaw in the Buscaino analysis lies in the
6
fact that Buscaino was not concerned with the plain language
of the statute. Rather, the Court in Buscaino, operating
under the erroneous belief that statutes of limitations were
merely “procedural” in nature, was concerned with avoiding an
apparent conflict between GCR 1963, 101, which provided that
“[a] civil action is commenced by filing a complaint with the
court” and the requirements of § 5856. Buscaino, supra at
480-481. In order to avoid a conflict between the court rule
and the statute, the Court adopted a strained, limited
interpretation of § 5856.
This Court has since clarified the distinction between
statutes regarding matters of “practice and procedure” and
those regarding substantive law in McDougall, supra. If the
statute concerns a matter that is purely procedural and
pertains only to the administration of the courts, the court
rule would control. Id. at 26-27. If, however, the statute
concerns a “‘principle of public policy, having as its basis
something other than court administration . . . the [court]
rule should yield.’” Id. at 31, quoting Joiner & Miller,
Rules of practice and procedure: A study of judicial rule
making, 55 Mich L R 623, 635 (1957).
Statutes regarding periods of limitations are substantive
in nature. In Nielsen v Barnett, 440 Mich 1, 8-9; 485 NW2d
666 (1992), this Court noted the various policies underlying
7
statutes of limitations:
By enacting a statute of limitations, the
Legislature determines the reasonable period of
time given to a plaintiff to pursue a claim. The
policy reasons behind statutes of limitations
include: the prompt recovery of damages, penalizing
plaintiffs who are not industrious in pursuing
claims, security against stale demands, relieving
defendants’ fear of litigation, prevention of
fraudulent claims, and a remedy for general
inconveniences resulting from delay. . . .
[Citations omitted.]
Therefore, after McDougall, it is clear that, to the extent §
5856 enacts additional requirements regarding the tolling of
the statute of limitations, the statute would supersede the
court rule. There is no reason to continue to adhere to
Buscaino’s tortured reading of § 5856 that contradicts the
statute’s plain and unambiguous language.
Further, it should be noted that although the Court in
Buscaino relied in part on the Committee Comment to § 5856, it
failed to consider the entire comment.4 In Buscaino, after
4
We note that the Court in Buscaino erred in relying on
the Committee Comment without first finding the statutory
language ambiguous. It would be proper, however, to turn to
the Committee Comment if the statutory language were
ambiguous. Although the committee comments lack the force of
law, they may be useful interpretive aids. See Shurlow v
Bonthuis, 456 Mich 730, 735 n 7; 576 NW2d 159 (1998); In re
McKim Estate, 238 Mich App 453, 460 n 5; 606 NW2d 30 (1999).
Section 5856 was part of extensive proposals drafted by the
Joint Committee on Michigan Procedural Revision, not unlike
model acts such as the Uniform Commercial Code, and eventually
adopted by the Legislature. When it considered the
committee’s proposal, the Legislature had the benefit of the
explanatory comments by the draftsmen. Indeed, the
committee’s proposal was adopted verbatim as § 5856. State
8
holding that § 5856 dealt only with prior lawsuits between the
parties that were not adjudicated on the merits, the Court
stated:
Even the Committee Comment recognizes this
function of MCLA § 600.5856 . . . . The Committee
Comment reads:
“In the event of the dismissal, on some ground
other than on the merits (as for example—lack of
jurisdiction over the subject matter) of an action
in which jurisdiction over the defendant is
acquired, the period of time from the time of
service or the acquisition of jurisdiction over the
defendant until dismissal will not count as a part
of the time of limitation, for during such time the
statute has been tolled. Subsections (1) and (2).”
[Buscaino, supra at 482-483.]
The Court in Buscaino failed to clarify, however, that
this was only the final paragraph of the Committee Comment.
Viewed as a whole, the Committee Comment completely
contradicts the Court’s holding in Buscaino:
Section [600.5856] is designed to avoid the
problems which have commonly arisen in those
jurisdictions lacking such a section, as to
precisely at what point the statutes of limitation
are tolled. The question of whether mere filing of
the complaint constituted commencement of an action
to stop the running of the statutes of limitation
was presented to the Federal Advisory Committee on
Rules in their preliminary meetings in 1937, but
was left unanswered. Consequently many difficult
Bar of Michigan, Final Report: Joint Committee on Michigan
Procedural Revision, ch 41.28, pp 318-319 (1960). Therefore,
because the comments informed the Legislature’s decision to
adopt the committee’s proposal, they would be useful
interpretive aids if the statutory language were ambiguous.
See Miller v State Farm Mut Automobile Ins Co, 410 Mich 538,
559; 302 NW2d 537 (1981).
9
problems of interpretation arose in federal courts,
with various results. One court held that the mere
filing of the complaint was sufficient to toll the
statute of limitations. Bomar v Keyes, 162 F2d 136
[(CA 2, 1947)]. On the other hand, it has been held
that an action is commenced by the filing of the
complaint so long as process is issued in due
course with intent that it be served. Jacobson v
Coon, 165 F2d 565 [(CA 6, 1948)].
As yet the United States Supreme Court has not
directly passed on the question insofar as it
relates to federal questions. The court has held
that local law will govern diversity cases on this
matter. Existing Michigan law as stated in Korby v
Sosnowski, 339 Mich 705[; 64 NW2d 683 (1953)],
holds that an action at law for damages is
commenced when the summons is in good faith placed
in the hands of an officer for service although
service is not actually made until after expiration
of the statutes of limitation. It is submitted that
permitting the determination of when an action is
commenced as to toll the statutes of limitations
ought not to depend on a particular court's
interpretation of such tenuous words and phrases as
“intent,” “due course,” “reasonable diligence,”
etc. Therefore, the instant section has been
included in the statute of limitations in order
that the question might be definitely settled
without resort to case law.
The mere act of filing a complaint should not
toll the statute, as a matter of policy. The
section does not accept the theory of the case as
cited above. It is unrealistic to argue that
defendants are put on notice of a lawsuit merely
because a public court record exists to that
effect. The defendant has a vital interest in being
informed of the pendency of an action against him.
Thus we have sought to enable a plaintiff to avoid
the bar of a statute of limitation by taking the
proper steps of establishing a court record (filing
the complaint) and complying with the requirements
of a method reasonably calculated to give a
defendant notice. At the same time, we have
required the plaintiff to prosecute his action
diligently by the imposition of a maximum tolling
period. The rights of both parties are thus
10
protected. The plaintiff has the option of using
some other method of getting jurisdiction over the
defendant. And, if he does use some other method of
getting jurisdiction over the defendant, the period
of limitation will be tolled at the time
jurisdiction over the defendant is accomplished.
The section does not constitute any radical
departure from presently accepted principles, but
it prescribes a definite procedure to be utilized
wherein counsel are informed of the necessary steps
which will guarantee the tolling of the statute of
limitation. The adoption of this section will
greatly increase predictability.
Under subsection (1) the statutes of
limitations are tolled when the complaint is filed
and a copy of the summons and complaint are served
on the defendant. Under subsection (2) the statutes
of limitations are tolled when jurisdiction over
the defendant is obtained by some other method. The
statutes of limitations are also tolled when the
complaint is filed and a copy of the summons and
complaint are in good faith placed in the hands of
an officer for service as per subsection (3). Thus
a plaintiff need not actually have secured the
accomplishment of service or have otherwise
obtained jurisdiction over the defendant in order
to preserve his cause of action. It should be
noted, however, that under subsection (3) the
statutes are tolled for a maximum period of ninety
days. The statute again begins to run when the
90-day period has expired, and may not be tolled
again until the service is made or jurisdiction
over the defendant is obtained by some other
method. It should also be noted that in order to
secure the benefits of subsection (3), a copy of
the summons and complaint must be placed in the
hands of an “officer,” and not just any person of
suitable age and discretion.
In summary, a method has been provided whereby
a plaintiff, by taking the proper steps, can toll
the statute of limitation on his cause of action
for a maximum period of ninety days. The
establishment of a maximum toll period should
eliminate the litigation-provoking questions as to
whether or not a plaintiff “intended” to
11
“diligently prosecute” his suit, as bearing on the
issue of how long the statute could be tolled by
placing a copy of the summons and complaint in good
faith in the hands of an officer for service.
Example: Suppose a two year statute of
limitation. P files a complaint one year and eleven
months after the cause of action arose. On the same
day a copy of the summons and complaint are in good
faith placed in the hands of an officer for
service. Actual service is made 100 days later. Can
D plead the two-year statute as a bar to the
action?
No--the statute was tolled for 90 days when P
-
filed a complaint and in good faith placed a copy
of the summons and complaint in the hands of an
officer for service. At the end of the 90-day
period, the statute again started to run--at this
-
point P still had 30 days in which service could be
made (the two-year statute minus one year and
eleven months) and service was actually made on the
tenth of these 30 days left. If the service had
been made 121 days after the filing of the
complaint D could have pleaded the statute of
limitations as a bar to the action.
In the event of the dismissal, on some ground
other than on the merits (as for example--lack of
-
jurisdiction over the subject matter) of an action
in which jurisdiction over the defendant is
acquired, the period of time from the time of
service or the acquisition of jurisdiction over the
defendant until dismissal will not count as a part
of the time of limitation, for during such time the
statute has been tolled. Subsections (1) and (2).
In sum, the interpretation of § 5856 adopted in Buscaino
is contrary to the plain language of the statute and should be
repudiated. Section 5805, by its very terms, creates only a
threshold requirement to the filing of the complaint. Nowhere
in the statute does it provide that, once the complaint is
filed, the statute of limitations becomes irrelevant and
12
tolling immaterial. Rather, one must then turn to § 5856,
which provides the specific requirements for tolling the
statute of limitations. If those requirements are not met,
the period of limitations continues to run. Nothing in the
statutory language of either § 5805 or § 5856 permits limiting
§ 5856 to claims in which prior actions were not adjudicated
on the merits.5 Therefore, we overrule Buscaino and clarify
that one must satisfy the requirements of § 5856 in order to
toll the limitations period.
IV. APPLICATION
In overruling Buscaino, we are mindful of the effect our
decision may have. We recently addressed the application of
decisions overruling prior precedent in Pohutski, supra at
695-696:
As this Court noted in Placek v Sterling
Heights, 405 Mich 638, 665; 275 NW2d 511 (1979),
quoting Williams [v Detroit, 364 Mich 231, 265-266;
111 NW2d 1 (1961)]:
“This Court has overruled prior precedent many
times in the past. In each such instance the Court
must take into account the total situation
confronting it and seek a just and realistic
solution of the problems occasioned by the change.”
* * *
Although the general rule is that judicial
decisions are given full retroactive effect, Hyde v
5
We further note that nothing in the text of MCR 2.101
permits limiting § 5856 to claims in which prior actions were
not adjudicated on the merits.
13
Univ of Michigan Bd of Regents, 426 Mich 223, 240;
393 NW2d 847 (1986), a more flexible approach is
warranted where injustice might result from full
retroactivity. Lindsey v Harper Hosp, 455 Mich 56,
68; 564 NW2d 861 (1997).
Although this opinion gives effect to the intent of the
Legislature that may be reasonably inferred from the
unambiguous text of § 5856, practically speaking our holding
is akin to the announcement of a new rule of law, given the
erroneous interpretation set forth in Buscaino.
Further, there has been extensive reliance on Buscaino’s
interpretation of § 5856. Parties have undoubtedly relied on
Buscaino’s erroneous interpretation when calculating filing
deadlines regarding limitations periods, and courts have
relied on Buscaino’s erroneous interpretation when ruling on
motions regardings limitations periods. In light of the
extensive reliance on Buscaino, limited retroactive
application minimizes the effect of this decision on the
administration of justice.6
6
We note that the equities in this case differ from those
in Pohutski, supra, which applied prospectively only. In
Pohutski, the Legislature had passed 2001 PA 222 providing a
remedy for damages or physical injuries caused by a sewage
disposal system event. 2001 PA 222 did not apply
retroactively. Therefore, we held that prospective
application was appropriate because, otherwise, plaintiffs in
pending cases would have been part of a discrete class of
litigants denied relief, as those who came before received
relief under Hadfield v Oakland Co Drain Comm’r, 430 Mich 139;
422 NW2d 205 (1988), and those who came after would receive
relief under the statute. This case, however, does not
present this unique situation, as there is no statute taking
14
Accordingly, this decision will be given limited
retroactive application, applying only to cases in which this
specific issue has been raised and preserved. People v
Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002); Lowe v Estate
Motors, Ltd, 428 Mich 439, 475; 410 NW2d 706 (1987). In all
other cases, this decision will have prospective application,
effective September 1, 2003.
In this case, although plaintiff satisfied the threshold
requirement of § 5805 by filing the complaint before the
period of limitations expired, plaintiff did not immediately
complete any of the actions required by § 5856 to toll the
statute of limitations. Therefore, the period of limitations
continued to run and expired on January 23, 1999, well before
plaintiff served defendant on May 4, 1999.
V. CONCLUSION
We hold that the unambiguous language of §§ 5805 and 5856
provides that the filing of a complaint alone does not toll
the running of the limitations period. In addition to filing
the complaint, one must also comply with the requirements of
§ 5856 in order to toll the limitations period. In so
effect at some point in the future codifying Buscaino.
Although prior litigants have proceeded under Buscaino’s
flawed interpretation, all subsequent litigants (after the
effective date of this opinion) will be governed by this case.
Therefore, the extreme measure of pure prospective application
is unnecessary and inappropriate because there is no discrete
class of litigants who would be denied relief.
15
holding, we overrule our prior interpretation of § 5856 in
Buscaino. After considering the effect of this decision on
the administration of justice, however, we hold that this
decision is given limited retroactive application, applying
only to those cases in which this specific issue has been
raised and preserved. In all other cases, the decision is
given prospective application, effective September 1, 2003.
Therefore, we reverse the judgment of the Court of Appeals
and reinstate the circuit court’s grant of summary disposition
for defendant.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
16
S T A T E O F M I C H I G A N
SUPREME COURT
ROBERT GLADYCH,
Plaintiff-Appellee,
v No. 119948
NEW FAMILY HOMES, INC.,
Defendant-Appellant.
____________________________________
WEAVER, J. (concurring in part and dissenting in part).
I agree with the majority’s interpretation of MCL
600.5856, and its decision to overrule the erroneous
interpretation of this statute articulated in Buscaino v
Rhodes, 385 Mich 474; 189 NW2d 202 (1971). However, in
fairness to the plaintiff in the present case, I would give
the decision prospective application only and allow the
plaintiff to rely on Buscaino.
Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly