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Jewell v. Pinson9/1/2005
comply with MCL 600.2912d(1) was not the result of a clerical error, but the result of plaintiffs' failure to notarize the affidavits as required by the statute. Holmes, supra at 711. Second, in Ward, the plaintiff "diligently pursued his cause of action." Ward, supra at 521. In contrast, in the instant case, we find that plaintiffs did not diligently pursue their cause of action because they failed to file affidavits of merit that were notarized even though, at the time plaintiffs filed their complaint, this Court had already decided Holmes, supra, which specifically held that MCL 600.2912d(1) required an affidavit of merit filed with a complaint in a medical malpractice case to be notarized. Holmes, supra at 711. "An element of equitable tolling is that a plaintiff must exercise reasonable diligence in investigating and bringing his claim." Ward, supra at 520. We decided Holmes in 2000, and plaintiffs filed their complaint on July 24, 2002. Counsel for plaintiffs therefore should have known that MCL 600.2912d(1) required affidavits of merit to be notarized. Third, in Ward, the " laintiff's counsel filed the correct affidavit of merit as soon as he became aware of the error." Id. at 523. In contrast,in the instant case, defendants specifically put plaintiffs on notice a mere three weeks and two days after plaintiffs filed their complaint that plaintiffs' affidavits of merit did not comply with MCL 600.2912d, yet plaintiffs failed to immediately correct the deficiency in their affidavits and instead waited until after the statute of limitations had expired to file affidavits of merit that were notarized.
In Ward, we observed that the doctrine of equitable tolling should rarely be invoked. Id. at 520. For the reasons articulated above, we find that the equities involved in this case do not warrant invocation of the doctrine to avoid the running of the statute of limitations.
Plaintiffs finally argue that the trial court erred in denying plaintiffs' motion to amend their complaint to add a claim based on the Clinical Laboratory Improvement Amendments of 1998 (CLIA), 42 USC 263a. We disagree.
We review the denial of a motion for leave to amend pleadings for an abuse of discretion. Franchino v Franchino, 263 Mich App 172, 189, 193; 687 NW2d 620 (2004). To constitute an abuse of discretion, the result must be so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Id. at 193.
Leave to amend pleadings "shall be freely given when justice so requires." MCR 2.118(A)(2). Parties should be afforded great latitude in amending their pleadings before trial; however, the interest of giving free leave to amend pleadings must be weighed against the interest in the speedy resolution of disputes. Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 487; 652 NW2d 503 (2002), overruled on other grounds in Elezovic v Ford Motor Co, 472 Mich 408 (2005). A motion for leave to amend a pleading should be denied only for specific reasons such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility. Franchino, supra at 189-190. However, delay alone does not merit denial of a motion to amend unless the delay results in prejudice to the opposing party such that the party would be denied a fair trial. Amburgey v Sauder, 238 Mich App 228, 247; 605 NW2d 84 (1999). The prejudice must stem from the lateness of the allegations offered and not from the impact of those allegations on the ultimate disposition of the action. Id. The t
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