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Terrace Land Development Corp. v. Seeligson & Jordan3/19/2002
FOR PUBLICATION
Plaintiffs appeal as of right from a judgment granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7). The trial court dismissed plaintiffs' legal malpractice action on the grounds that it was time-barred by the applicable statute of limitations. We reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiffs filed a complaint alleging three separate instances of legal malpractice committed by defendants in two circuit court cases and in an appeal to this Court. In the appeal before us now, plaintiffs only challenge the dismissal of the claim related to alleged malpractice arising out of defendants' representation of plaintiffs in an action in the Washtenaw Circuit Court, file number 96-6366-CH. There is no dispute that defendants' representation of plaintiffs in that matter was terminated on June 17, 1997.
Plaintiffs filed the instant complaint on May 4, 1999. However, the complaint was not delivered to an officer for service until July 16, 1999, and the complaint was actually served on defendants on July 30, 1999. There is no dispute as to the dates concerning the filing of the complaint, the delivery of the complaint to the officer, and the service of the complaint. The narrow issue presented to us, as agreed upon by the parties, is whether the statute of limitations barred plaintiffs' cause of action, where the complaint was filed within the two-year limitation period, but where the complaint was not placed with an officer for service, nor service effectuated, until after the limitation period had expired.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (10), arguing that the statute of limitations barred plaintiffs' action, and the trial court granted the motion pursuant to MCR 2.116(C)(7). The trial court ruled that pursuant to MCL 600.5856, plaintiffs' failure to deliver the complaint to an officer until after the expiration of the statute of limitations barred the action despite the language in MCR 2.102(B) and the timely filing of the complaint. We disagree because MCL 600.5856 is not applicable under the facts of this case.
II. APPLICABLE LAW
A. MCR 2.116(C)(7) and STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7). DiPonio Construction Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59 (2001). In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff 's well- pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff 's favor. Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001). Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision as to whether a plaintiff 's claim is barred by the statute of limitations is a question of law that this Court reviews de novo. Id.
B. STATUTE OF LIMITATIONS
MCL 600.5805 and MCL 600.5838 require "a plaintiff in a legal malpractice action to file suit within two years of the attorney's last day of service, or within six months of when the plaintiff discovered, or should have discovered the claim." Gebhardt v O'Rourke, 444 Mich 535, 539; 510 NW2d 900 (1994).
C. MCR 2.101(B) AND MCL 600.5856
MCR 2.101(B) provides that " civil action is commenced by filing a complaint with a court." MCL 600.5856 provides, in relevant part:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is
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