Olin v. Mercy Health Hackley Campus

          Muskegon Circuit Court LC Nos. 17-001444-NH, 17-005827-NH

          Before: Beckering, P.J., and Servitto and Stephens, JJ.

          PER CURIAM

         In Docket No. 341523, plaintiff, Jaxon Olin, a minor, through his next friend, Nicole Curtis, appeals by right the trial court's order granting defendants' motion for summary disposition and dismissing with prejudice his medical malpractice lawsuit. The crux of the issue on appeal is whether a lawsuit, timely filed by or on behalf of a minor plaintiff, is defective and invalid until the trial court formally appoints a next friend for the minor. The trial court granted defendants' motion based on the expiration of the applicable limitations period before entry of an order formally appointing plaintiff's mother, Curtis, as plaintiff's next friend.^[1] For the reasons set forth below, we reverse and remand to the trial court for further proceedings.

          I. BASIC FACTS AND PROCEDURAL HISTORY

         On September 22, 2014, plaintiff, who was 10 years old at the time, underwent an adenoidectomy, a direct laryngoscopy, and a lingual tonsillectomy. It is plaintiff's contention that defendants negligently performed the surgery, resulting in extensive tracheal tearing, total collapse of his lungs, severe and extensive subcutaneous emphysema, a pneumomediastinum, vocal cord paralysis, and other injuries. On September 20, 2016, two days before the two-year period of limitations would have otherwise expired, MCL 600.5805(8), plaintiff's attorney served on defendants a notice of intent (NOI) to file a medical malpractice claim. This served to toll the statutory limitations period for 182 days. See MCL 600.2912b. On March 22, 2017, plaintiff filed his complaint, with Curtis operating as his next friend pending formal appointment by the trial court. The parties agree that the statute of limitations would have expired on March 23, 2017, and that plaintiff filed the complaint within the statutory limitations period.

         Defendants had filed their answers and the parties were engaged in discovery when plaintiff's counsel realized that the trial court had not yet formally appointed Curtis as plaintiff's next friend. Promptly after this discovery, plaintiff's counsel filed a petition seeking Curtis' appointment and noting that, pursuant to MCR 2.201(E), the court was required to appoint a next friend because plaintiff did not have a conservator. Plaintiff attached to the petition Curtis's written consent to be appointed and her verification that she was willing to become responsible for the costs of the action. See MCR 2.201(E)(2)(a)(ii). Five days later, on September 13, 2017, the trial court entered an order appointing Curtis as plaintiff's next friend.

         On the same day the trial court appointed Curtis as next friend, defendants Paul E. Lomeo, D.O., and Shoreline E.N.T., PLC, filed a motion for summary disposition pursuant to MCR 2.116(C)(5) (legal capacity to sue), (7) (statute of limitations), and (8) (failure to state a claim). The motion asserted that defendants had become aware two days earlier that the trial court had not appointed Curtis as plaintiff's next friend, and because she was not the appointed next friend when the action was filed, she did not have standing to file it. Defendants further argued that, according to this Court's decision in Cotter v Britt, unpublished per curiam opinion of the Court of Appeals, issued May 31, 2007 (Docket No. 274776), ^[2] neither plaintiff nor Curtis had standing to pursue this action on March 22, 2017, or at any time before the expiration of the period of limitations on March 23, 2017. Thus, defendants claimed that plaintiff's case should be dismissed as time barred. All of the other defendants joined in the motion.

         At the October 16, 2017 hearing on defendants' motion, defendants repeated the argument they had set forth in their summary disposition motion and supporting brief. In opposition to the motion, plaintiff argued that nothing in the language of MCR 2.201(E) required appointment of the next friend before filing the complaint, and that the language of the court rule actually contemplates the opposite because it refers to the nomination for appointment of a next friend "after service of process." Plaintiff also argued that the delay in formally appointing Curtis was, at most, a harmless oversight without prejudice. The trial court took the matter under advisement, and on November 15, 2017, it issued a written opinion in which it concluded that Cotter was directly on point and persuasive. Relying on the reasoning in Cotter, the trial court entered a corresponding order on December 4, 2017 granting defendants' motion for summary disposition and dismissing plaintiff's case with prejudice.

         II. STANDARDS OF REVIEW

         We "review de novo a trial court's decision regarding a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law." Bernardoni v Saginaw, 499 Mich. 470, 472; 886 N.W.2d 109 (2016). Defendants moved for summary disposition pursuant to MCR 2.116(C)(5), (C)(7), and (C)(8). Although the trial court did not identify the court rule under which it granted defendants' motion, it granted summary disposition for the reasons stated in Cotter. In Cotter, this Court relied on MCR 2.116(C)(8) to support summary disposition on the ground that the minor child "could not file suit on her own behalf, and suit was not filed by a properly appointed next friend." Cotter, unpub op at 3-4. A motion under MCR 2.116(8) tests the legal sufficiency of a complaint, and summary disposition is proper if "the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Maiden v Rozwood, 461 Mich. 109, 119-120; 597 N.W.2d 817 (1999). "When deciding a motion brought under this section, a court considers only the pleadings." Id., citing MCR 2.116(G)(5).

         This dispute primarily involves the interpretation and application of MCR 2.201.

Interpretation of a court rule is a question of law that this Court reviews de novo. CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich. 549, 553; 640 N.W.2d 256 (2002). When interpreting a court rule, we apply the same rules as when we engage in statutory interpretation. Id. at 553. The overriding goal of judicial interpretation of a court rule is to give effect to the intent of the authors. See Bio- Magnetic Resonance, Inc v Dep't of Pub Health, 234 Mich.App. 225, 229; 593 N.W.2d 641 (1999). The starting point of this endeavor is the language of the court rule. Id. If the language of the court rule is clear and unambiguous, then no further interpretation is required or allowed. CAM Constr, [465 Mich. at 554]. However, when reasonable minds can differ on the meaning of the language of the rule, then judicial construction is appropriate. Benedict v Dep't of Treasury, 236 Mich.App. 559, 563; 601 N.W.2d 151 (1999). [Wilcoxon v Wayne Co Neighborhood Legal Servs, 252 Mich.App. 549, 553; 652 N.W.2d 851 (2002).]

III. ANALYSIS

         A. NEXT FRIEND APPOINTMENT

          Plaintiff first contends that the trial court erred by granting defendants' motion for summary disposition on the ground that Curtis was not the "real party in interest" at the time the complaint was filed because she had not yet been appointed plaintiff's next friend. We agree.

         "An action must be prosecuted in the name of the real party in interest . . . ." Maki Estate v Coen, 318 Mich.App. 532, 539; 899 N.W.2d 111 (2017)." 'A real party in interest is one who is vested with the right of action on a given claim, although the beneficial interest may be in another.'" Beatrice Rottenberg Living Trust, quoting Hofmann v Auto Club Ins Ass'n, 211 Mich.App. 55, 95; 535 N.W.2d 529');">535 N.W.2d 529 (1995). The real-party-in-interest rule "recognizes that litigation should be begun only by a party having an interest that will ensure sincere and vigorous advocacy." City of Kalamazoo v Richland Twp, 221 Mich.App. 531, 534; 562 N.W.2d 237 (1997). The rule also protects the defendant by "requiring that the claim be prosecuted by the party who by the substantive law in question owns the claim asserted against the defendant." Beatrice Rottenberg Living Trust, 300 Mich.App. at 356 (quotation marks and citation omitted).

         There can be no serious dispute that plaintiff owns the medical malpractice claim arising from injuries allegedly resulting from his surgery. Michigan courts have held that, when a plaintiff acts on behalf of a minor in a representative capacity, the cause of action still belongs to the minor. See, e.g., Gumienny v Hess, 285 Mich. 411, 414; 280 N.W. 809 (1938) (recognizing that where a minor is injured, the minor accrues a cause of action); Walter v Flint, 40 Mich.App. 613, 616; 199 N.W.2d 264 (1972) ("In Michigan, an infant's cause of action for damages and the parents' cause of action to recover their expenses and loss of services, though arising from the same set of circumstances, are separate and independent causes of action."); Broitman v Kohn, 16 Mich.App. 400, 402; 168 N.W.2d 311 (1969) (recognizing that where a father pursues a claim for his daughter's injuries, his claim is "in reality her cause of action[.]").^[3]

         As demonstrated by Gumienny, Walter, and Broitman, Michigan's substantive law supports the conclusion that where a minor is negligently injured by another and sues through his or her next friend, the claim still belongs to the minor, and it is the minor who is the real party in interest. The trial court and defendants rely on Cotter's assertion, "A next friend is the real party in interest, even though the beneficial interest rests with the minor[, ]" to argue that Curtis is the real party in interest while the beneficial interest rests with plaintiff. Cotter, unpub op at 3. However, the distinction between the real party in interest from the one with the beneficial interest typically arises in circumstances involving statutory standing^[4] and assignment of claims, ^[5]in cases where plaintiffs appear not to have an economic interest in the outcome of litigation, ^[6] or where contracts are involved.^[7] "Defendants have not cited any statute or published authority, nor have we found either, that makes this distinction where a next friend acts on behalf of a minor to pursue the minor's personal injury claim. In fact, Gumienny, Broitman, and Nielsen support the conclusion ...