JAXON OLIN, Minor, by Next Friend NICOLE CURTIS, Plaintiff-Appellant,
MERCY HEALTH HACKLEY CAMPUS, also known as MERCY HEALTH PARTNERS, LAKESHORE ANESTHESIA SERVICES PC, EDWARD WINIECKE, M.D., ELIZABETH PITT, M.D., SHORELINE E.N.T., PLC, and PAUL E. LOMEO, D.O., Defendants-Appellees.
Muskegon Circuit Court LC Nos. 17-001444-NH, 17-005827-NH
Before: Beckering, P.J., and Servitto and Stephens, JJ.
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. For the reasons set forth below,
we reverse and remand to the trial court for further
BASIC FACTS AND PROCEDURAL HISTORY
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.
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
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),
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.
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.
STANDARDS OF REVIEW
"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).
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).]
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.
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).
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[.]").
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 and assignment of
claims, in cases where plaintiffs appear not to
have an economic interest in the outcome of litigation,
where contracts are involved. "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 ...