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Antoncew v. Lewis9/20/2005
UNPUBLISHED
Before: Sawyer, P.J., and Talbot and Borrello, JJ.
Plaintiffs appeal as of right the order granting defendant summary disposition. This negligence action arose out of an automobile accident involving plaintiffs and defendant, and the dispute on appeal involves whether service of process was properly effected within the applicable three-year statute of limitation. We reverse and remand for further proceedings.
Plaintiffs' sole claim on appeal is that the trial court erred in granting defendant summary disposition on the ground that plaintiffs failed to serve process within the applicable limitations period. We agree. We review de novo a trial court's ruling on a motion for summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Absent disputed issues of fact, whether a cause of action is barred by a statute of limitation is a question of law also reviewed de novo. Ashby v Byrnes, 251 Mich App 537, 540; 651 NW2d 922 (2002). Further, the proper interpretations of statutes and court rules are questions of law also subject to de novo review. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997); Barclay v Crown Bldg & Dev, Inc, 241 Mich App 639, 642; 617 NW2d 373 (2000).
Defendant relies on Gladych v New Family Homes, Inc, 468 Mich 594; 664 NW2d 705 (2003), for the proposition that MCL 600.5856 provides that the tolling of the limitations period is accomplished only when one of four certain enumerated criteria are met. According to defendant, plaintiffs failed to meet any of the four criteria.
Overruling Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), Gladych held that under MCL 600.5805, when read together with § 5856, the mere filing of a complaint is insufficient to toll the statute of limitations. Gladych, supra at 595, 607. Once the complaint is filed, a plaintiff must turn to § 5856 to determine the effect of the statute of limitations. Id. at 598. Considering the effect of its holding on the administration of justice in light of its overruling of Buscaino, the Gladych Court gave its holding limited retroactive application. Id. at 595, 605-607. By express order of the Court, the Gladych holding applied "retroactively only to those cases in which this specific issue has been raised and preserved." Id. at 595, 607. The Court stated that in all other cases, the opinion would apply to all subsequent litigants prospectively, effective September 1, 2003. Id. at 606 n 6.
With respect to the limited effect of Gladych, defendant concedes that plaintiffs' complaint, filed May 22, 2003, was filed before September 1, 2003, but defendant contends that Gladych nevertheless applies because he raised and preserved the specific issue in his motion for summary disposition.
Noting the potential for misunderstanding of the Gladych holding, the Court later clarified Gladych in Collins v Comerica Bank, 469 Mich 1223; 668 NW2d 357 (2003). Collins explained that Gladych applies retroactively only to cases in which the specific issue -that the tolling of the relevant statute of limitations can only be accomplished by complying with the provisions of MCL 600.5856- was raised or preserved before the Gladych decision was released on July 1, 2003. Collins, supra at 1223.
Only pending cases that preserved this particular statute of limitations challenge as of July 1, 2003[,] are covered by the limited retroactive application of our holding in Gladych. In all other cases, Gladych has prospective application only to complaints filed on or after September 1, 2003. [Id.]
Applying this clarified rule, the Court held that Gladych had no ret
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