                          STATE OF MICHIGAN

                           COURT OF APPEALS



DRAGO KOSTADINOVSKI and BLAGA                                       FOR PUBLICATION
KOSTADINOVSKI,                                                      October 24, 2017
                                                                    9:05 a.m.
               Plaintiffs-Appellants/Cross-
               Appellees,

v                                                                   No. 333034
                                                                    Macomb Circuit Court
STEVEN D. HARRINGTON, M.D., and                                     LC No. 2014-002247-NH
ADVANCED CARDIOTHORACIC SURGEONS,
PLLC,

               Defendants-Appellees/Cross-
               Appellants.


Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

MURPHY, J.

        Plaintiffs Drago Kostadinovski and Blaga Kostadinovski, husband and wife, appeal as of
right the trial court’s order denying their motion to file an amended medical malpractice
complaint after the court had earlier granted summary disposition in favor of defendants Steven
D. Harrington, M.D. (the doctor), and Advanced Cardiothoracic Surgeons, P.L.L.C., on
plaintiffs’ original complaint. Mr. Kostadinovski suffered a stroke during the course of a mitral-
valve-repair (MVR) surgery performed by the doctor in December 2011. Plaintiffs timely served
defendants with a notice of intent to file a claim (NOI), MCL 600.2912b, and later timely filed a
complaint for medical malpractice against defendants, along with the necessary affidavit of
merit, MCL 600.2912d. In the NOI, affidavit of merit, and the complaint, plaintiffs set forth
multiple theories with respect to how the doctor allegedly breached the standard of care in
connection with the surgery. After nearly two years of litigation and the close of discovery,
plaintiffs’ experts effectively disavowed and could no longer endorse the previously-identified
negligence or breach-of-care theories and the associated causation claims, determining now,
purportedly on the basis of information gleaned from discovery, that the doctor had instead
breached the standard of care by failing to adequately monitor Mr. Kostadinovski’s hypotension
(low blood pressure) and transfuse him, resulting in the stroke. Plaintiffs agreed to the dismissal
of the existing negligence allegations and complaint, but sought to file an amended complaint
that included allegations regarding Mr. Kostadinovski’s hypotensive state and the failure to
adequately transfuse him. While the trial court believed that any amendment would generally
relate back to the filing date of the original complaint, the court ruled that an amendment would

                                                -1-
be futile, considering that the existing NOI would be rendered obsolete because it did not
reference the current malpractice theory. And, absent the mandatory NOI, a medical malpractice
action could not be sustained. The denial of plaintiffs’ motion to amend the complaint, in
conjunction with the dismissal of the original complaint, effectively ended plaintiffs’ lawsuit.
On appeal, plaintiffs challenge the denial of their motion to amend the complaint. Defendants
cross appeal, arguing that, aside from futility, amendment of the complaint should not be
permitted because plaintiffs unduly delayed raising the new negligence theory and because such
a late amendment would prejudice defendants. On the strength of Bush v Shabahang, 484 Mich
156; 772 NW2d 272 (2009), we hold that the trial court, as opposed to automatically not
allowing plaintiffs to amend their complaint because of the NOI conundrum that would be
created, was required to assess whether the NOI defect could be disregarded or cured by an
amendment of the NOI under MCL 600.2301 in the context of futility analysis. Accordingly, we
reverse and remand for further proceedings under MCL 600.2301.

                                       I. BACKGROUND

        On December 9, 2013, plaintiffs served defendants with the NOI, asserting that on
December 14, 2011, the doctor had performed robotic-assisted MVR surgery on Mr.
Kostadinovski and that, as subsequently determined, Mr. Kostadinovski suffered a stroke during
the course of the procedure. The NOI listed six specific theories with respect to the manner in
which the doctor allegedly breached the applicable standard of care relative to the surgery and
preparation for the surgery, along with identifying related causation claims. 1 On June 4, 2014,
an expert for plaintiffs executed an affidavit of merit that listed the same six negligence theories
outlined in the NOI in regard to the alleged breaches of the standard of care. On June 5, 2014,
plaintiffs filed their medical malpractice complaint against defendants, along with the affidavit of
merit, alleging that the doctor breached the standard of care in the six ways identified in the NOI
and affidavit of merit. The causation claims were also identical in all three legal documents. In
resolving this appeal, it is unnecessary for us to discuss the particular nature of these negligence
and causation theories.

        On March 21, 2016, defendants filed a motion for summary disposition, arguing that, as
revealed during discovery, plaintiffs’ expert witnesses could not validate or support the six
negligence theories set forth in the NOI, affidavit of merit, and the complaint. On that same
date, March 21, 2016, plaintiffs filed a motion to amend their complaint. Plaintiffs asserted that
discovery had recently been completed and that discovery showed that Mr. Kostadinovski “was
in a hypotensive state during the operation and was not adequately transfused.” According to
plaintiffs, this evidence was previously unknown and only came to light following the deposition
of the perfusionist, the continuing deposition of the doctor, and the depositions of plaintiffs’
retained experts. Plaintiffs sought to amend the complaint to allege negligence against the doctor
“for failing to adequately monitor Mr. Kostadinovski’s hypotension during the operation and



1
 A seventh nonspecific allegation indicated that the doctor had “failed to adhere to any and all
additional requirements of the standard of care as may be revealed through the discovery
process.”


                                                -2-
failing to transfuse the patient so as to maintain the patient’s blood pressure.” On March 28,
2016, a hearing was held on plaintiffs’ motion to amend the complaint, and the trial court
decided to take the matter under advisement. On April 25, 2016, a hearing was conducted on
defendants’ motion for summary disposition, at which time plaintiffs agreed to the dismissal of
their original complaint, given that their theories of negligence now lacked expert support, as did
the causation claims that had been linked to the defunct negligence theories. 2 Plaintiffs’ motion
to amend the complaint remained pending.

       On April 29, 2016, the trial court issued a written opinion and order denying plaintiffs’
motion to amend the complaint. The court initially ruled, under MCR 2.118(D), that because the
proposed amendment of plaintiffs’ complaint arose from the same transactional setting as that
covered by the original complaint, any amendment would relate back to the date that the original
complaint was filed for purposes of the period of limitations. However, after citing language in
MCR 2.118 and associated caselaw regarding principles governing the amendment of pleadings,
along with MCL 600.2912b on notices of intent, the trial court ruled:

                The Court finds that plaintiffs’ NOI did not set forth the minimal
        requirements to provide notice of the claim of breach of the standard of care with
        regard to the failure to monitor hypotension levels during the operation and the
        failure to transfuse the patient as a potential cause of injury as required by MCL
        600.2912b. Accordingly, defendants were not given the opportunity to engage in
        any type of settlement negotiation with regard to the hypotension and transfusion
        claims because they were not given notice of the existence of any such claims.
        Even if plaintiffs had included these new allegations in their original complaint,
        defendants lacked the requisite notice mandated by MCL 600.2912b because they
        were not raised in the NOI.

                Plaintiffs’ failure to adhere to the statutory mandates renders the new
        allegations contained in the proposed amended complaint futile, as these new
        allegations of medical malpractice must fail as a matter of law. Therefore,
        plaintiffs’ motion to amend is properly denied. [Citations omitted.]

Plaintiffs appeal as of right.

                                          II. ANALYSIS

                                 A. STANDARDS OF REVIEW

         This Court reviews for an abuse of discretion a trial court’s ruling on a motion for leave
to file an amended pleading. Franchino v Franchino, 263 Mich App 172, 189; 687 NW2d 620
(2004). “Thus, we defer to the trial court's judgment, and if the trial court's decision results in an


2
 By order dated April 25, 2016, the trial court indicated that plaintiffs’ allegations of negligence
and causation as stated in the NOI, complaint, and affidavit of merit were dismissed with
prejudice.


                                                 -3-
outcome within the range of principled outcomes, it has not abused its discretion.”
Wormsbacher v Phillip R Seaver Title Co, Inc, 284 Mich App 1, 8; 772 NW2d 827 (2009)
(citation omitted). “A trial court . . . necessarily abuses its discretion when it makes an error of
law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). We review de novo
matters of statutory construction, as well as questions of law in general. Wells Fargo Bank, NA v
SBC IV REO, LLC, 318 Mich App 72, 89-90; 896 NW2d 821 (2016).

                 B. AMENDMENT OF PLEADINGS – BASIC PRINCIPLES

        A pleading may be amended once as a matter of course if done so within a limited period;
otherwise, “a party may amend a pleading only by leave of the court or by written consent of the
adverse party.” MCR 2.118(A)(1) and (2). Plaintiffs were no longer entitled to amend their
complaint as of right, necessitating their motion to amend the complaint. MCR 2.118(A)(2)
provides that “[l]eave shall be freely given when justice so requires.” Therefore, a motion to
amend should ordinarily be granted. Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647
(1997). A court must give a particularized reason for denying leave to amend a pleading, and
acceptable reasons for denial include undue delay, bad faith or dilatory motive by the party
seeking leave, repeated failures to cure deficiencies after previously-allowed amendments, undue
prejudice to the nonmoving party, and futility. Miller v Chapman Contracting, 477 Mich 102,
105; 730 NW2d 462 (2007); Wormsbacher, 284 Mich App at 8. The amendment of a pleading is
properly deemed futile when, regardless of the substantive merits of the proposed amended
pleading, the amendment is legally insufficient on its face. Hakari v Ski Brule, Inc, 230 Mich
App 352, 355; 584 NW2d 345 (1998); Gonyea v Motor Parts Fed Credit Union, 192 Mich App
74, 78; 480 NW2d 297 (1991).

        With respect to the question whether an amendment of a pleading relates back to the date
that the original pleading was filed, MCR 2.118(D) provides:

               An amendment that adds a claim or a defense relates back to the date of
       the original pleading if the claim or defense asserted in the amended pleading
       arose out of the conduct, transaction, or occurrence set forth, or attempted to be
       set forth, in the original pleading. In a medical malpractice action, an amendment
       of an affidavit of merit or affidavit of meritorious defense relates back to the date
       of the original filing of the affidavit.

       In Doyle v Hutzel Hosp, 241 Mich App 206, 218-219; 615 NW2d 759 (2000), this Court
analyzed MCR 2.118(D) and the caselaw regarding the amendment of pleadings, holding:

               When placed in context against a backdrop providing that leave to amend
       pleadings must be freely granted, MCR 2.118(A)(2), the principle to be gleaned
       from these cases is the necessity for a broadly focused inquiry regarding whether
       the allegations in the original and amended pleadings stem from the same general
       “conduct, transaction, or occurrence.” The temporal setting of the allegations is
       not, in and of itself, the determinative or paramount factor in resolving the
       propriety of an amendment of the pleadings, and undue focus on temporal
       differences clouds the requisite broader analysis.


                                                -4-
        It does not matter whether the proposed amendment introduces new facts, a different
cause of action, or a new theory, so long as the amendment springs from the same transactional
setting as that pleaded originally. Id. at 215.

   C. MEDICAL MALPRACTICE ACTIONS – NOTICE OF INTENT TO FILE A CLAIM

        The focus of the trial court’s ruling and the arguments of the parties concern the NOI and
the fact that plaintiffs’ proposed amended complaint set forth a negligence or breach-of-care
theory that was not recited in the NOI. MCL 600.2912b provides, in pertinent part:

               (1) Except as otherwise provided in this section, a person shall not
       commence an action alleging medical malpractice against a health professional or
       health facility unless the person has given the health professional or health facility
       written notice under this section not less than 182 days before the action is
       commenced.

                                               ***

               (4) The notice given to a health professional or health facility under this
       section shall contain a statement of at least all of the following:

               (a) The factual basis for the claim.

               (b) The applicable standard of practice or care alleged by the claimant.

               (c) The manner in which it is claimed that the applicable standard of
       practice or care was breached by the health professional or health facility.

              (d) The alleged action that should have been taken to achieve compliance
       with the alleged standard of practice or care.

               (e) The manner in which it is alleged the breach of the standard of practice
       or care was the proximate cause of the injury claimed in the notice.

               (f) The names of all health professionals and health facilities the claimant
       is notifying under this section in relation to the claim.

                                               ***

                (6) After the initial notice is given to a health professional or health
       facility under this section, the tacking or addition of successive 182-day periods is
       not allowed, irrespective of how many additional notices are subsequently filed
       for that claim and irrespective of the number of health professionals or health
       facilities notified.

      In Bush, 484 Mich at 174, our Supreme Court noted the legislative intent behind MCL
600.2912b, observing:


                                                -5-
                The stated purpose of § 2912b was to provide a mechanism for promoting
       settlement without the need for formal litigation, reducing the cost of medical
       malpractice litigation, and providing compensation for meritorious medical
       malpractice claims that would otherwise be precluded from recovery because of
       litigation costs. [Citation, quotation marks, and ellipsis omitted.]

                              D. DISCUSSION AND HOLDING

       Our analysis today entails the question whether the Bush Court’s application of MCL
600.2301 in a case involving a defective NOI governs the approach to be applied in the context
of the procedural circumstances present in the instant case, or whether two published opinions
from this Court that arguably lend some support for defendants’ position are controlling. MCL
600.2301 provides in full:

               The court in which any action or proceeding is pending, has power to
       amend any process, pleading or proceeding in such action or proceeding, either in
       form or substance, for the furtherance of justice, on such terms as are just, at any
       time before judgment rendered therein. The court at every stage of the action or
       proceeding shall disregard any error or defect in the proceedings which do not
       affect the substantial rights of the parties.

        In Gulley-Reaves v Baciewicz, 260 Mich App 478, 479-482; 679 NW2d 98 (2004), the
plaintiff served an NOI on the defendants, claiming medical malpractice in the performance of a
mediastinoscopy, and the plaintiff later filed a complaint against the defendants, along with two
supporting affidavits of merit. The Gulley-Reaves panel summarized the defendants’ response as
follows:

               Defendants filed a motion for summary disposition challenging plaintiff's
       compliance with the statutory requirements for providing presuit notice of intent
       to file a medical-malpractice-action. Specifically, defendants asserted that the
       notice of intent alleged malpractice with respect to the surgical procedure only.
       Upon the filing of the medical-malpractice complaint, defendants learned that
       plaintiff was also challenging the administration of the anesthesia during the
       surgical procedure. The notice of intent allegedly did not comply with the
       statutory requirements because it did not advise of the claimed wrongdoing with
       regard to the anesthesia. That is, it did not allege a breach of the standard of care
       and proximate cause based on anesthesia given during the surgical procedure. [Id.
       at 482-483.3]

       The Gulley-Reaves panel agreed that the NOI was defective, because it “did not set forth
the minimal requirements to identify that the anesthesia was a potential cause of plaintiff’s


3
  The plaintiff’s affidavits of merit and complaint in Gulley-Reaves did reveal a malpractice
claim based on the faulty administration of anesthesia. Gulley-Reaves, 260 Mich App at 481-
482.


                                               -6-
injury[,]” and because the NOI “was silent with regard to any breach of the standard of care
during the administration of anesthesia.” Id. at 487. This Court held that the trial court erred in
denying the defendants’ motion for summary disposition, given that the “[p]laintiff failed to
provide notice of the claim of breach of the standard of care with regard to the administration of
anesthesia as required by” the NOI statute. Id. at 490. The opinion did not include any
discussion whatsoever of MCL 600.2301, and the Bush opinion was still five years on the
horizon.

        In Bush, a case involving claims of medical malpractice arising out of surgery to repair an
aortic aneurysm, the NOI, amongst other alleged defects, purportedly failed to identify the
particular actions taken by physician assistants and the nursing staff that breached the standard of
care, failed to state how the hiring and training practices of one of the defendants breached the
standard of care, and failed to set forth some necessary theories of causation. Bush, 484 Mich at
161-162, 179-180. The Bush Court rejected the proposition that mandatory dismissal of a
medical malpractice action is the sole remedy for a defective NOI or violation of MCL
600.2912b. Id. at 170-181. Next, the Court, focusing on the alleged NOI defects, held:

               We agree with the Court of Appeals that these omissions do constitute
       defects in the NOI. However, we disagree with the Court of Appeals regarding the
       appropriate remedy. We are not persuaded that the defects . . . warrant dismissal
       of a claim. These types of defects fall squarely within the ambit of § 2301 and
       should be disregarded or cured by amendment. It would not be in the furtherance
       of justice to dismiss a claim where the plaintiff has made a good-faith attempt to
       comply with the content requirement of § 2912b. A dismissal would only be
       warranted if the party fails to make a good-faith attempt to comply with the
       content requirements. Accordingly, we hold that the alleged defects can be cured
       pursuant to § 2301 because the substantial rights of the parties are not affected,
       and “disregard” or “amendment” of the defect is in the furtherance of justice
       when a party has made a good-faith attempt to comply with the content provisions
       of § 2912b. [Id. at 180-181.]

       After Bush was decided, this Court issued an opinion in Decker v Rochowiak, 287 Mich
App 666; 791 NW2d 507 (2010). In Decker, the plaintiff, by his next friend, filed a medical
malpractice action that was predicated on an alleged failure to properly monitor the plaintiff’s
glucose level; the plaintiff was diagnosed “with cerebral palsy from an early anoxic (lack of
oxygen) brain injury.” Id. at 670-671. After serving his NOI on the defendants and filing his
complaint with supporting affidavits of merit, the plaintiff sought leave to file an amended
complaint in order to allege 17 specific ways in which the defendants breached the applicable
standards of care. Id. at 671. This Court summarized the plaintiff’s argument in favor of
allowing the amended complaint:

               Plaintiff argued that the amendment was proper because (1) discovery
       remained open and experts had not been deposed, (2) the amendment merely
       clarified allegations and issues and was made possible after particular information
       was learned through the discovery process, (3) the clarifications ultimately relate
       back to the underlying lynch pin of this entire case which is that they did not
       appropriately monitor and maintain this baby's glucose level, and (4) defendants

                                                -7-
       would not be prejudiced by the amendment. [Id. (quotation marks and alteration
       brackets omitted).]

The trial court granted the request to file an amended complaint and subsequently denied various
motions for summary disposition filed by the defendants, with this Court granting and
consolidating multiple applications for leave to appeal pursued by the defendants. Id. at 671-
674.

        The defendants in Decker argued that the plaintiff’s amended complaint had asserted new
theories of medical malpractice that were not contained in the NOI; therefore, amendment of the
complaint should not have been allowed or the amended complaint should have been summarily
dismissed pursuant to Gulley-Reaves. Decker, 287 Mich App at 679-682. The Decker panel
found that the plaintiff, while providing some details and clarification, had not actually alleged
any new negligence or causation claims in the amended complaint that were not already
encompassed by the claims in the NOI, so the purpose of the notice requirement was realized.
Id. at 677-682. The Court observed that “[t]his is not a case where, as in Gulley-Reaves, the
plaintiff set forth a totally new and different potential cause of injury in an amended complaint
compared to the potential cause of injury set forth in her NOI, e.g., the manner in which a
particular surgical procedure was performed compared to the manner in which anesthesia was
administered during the surgery.” Id. at 680-681. This statement by the Decker panel might lead
one to believe at first glance that, when a totally new breach-of-care or causation theory actually
is pursued, as in the instant case, summary dismissal or disallowance of an amended complaint
would be appropriate.

        We conclude that Bush controls our analysis. If MCL 600.2301 is implicated and
potentially applicable to save a medical malpractice action when an NOI is defective because of
a failure to include negligence or causation theories required by MCL 600.2912b(4), then, by
analogy, MCL 600.2301 must likewise be implicated and potentially applicable when an NOI is
deemed defective because it no longer includes the negligence or causation theories required by
MCL 600.2912b(4) and alleged in the complaint, due to a post-complaint change in the theories
being advanced by a plaintiff as a result of information gleaned from discovery. There is no
sound or valid reason that the principles from Bush should not be applied here. Indeed, as a
general observation, factual circumstances are even more compelling for the invocation of MCL
600.2301 when an NOI is not defective from the outset but becomes defective because discovery
has shed new light on the case and given rise to a new liability theory.4

        Assuming that Gulley-Reaves supports defendants’ position here, it was issued prior to
Bush and the Court did not entertain an argument under MCL 600.2301. Second, the Court in
Decker also did not entertain an argument under MCL 600.2301, nor would it have been
necessary for the panel to have even reached an argument under MCL 600.2301, given the nature
of its ruling that no new claims were asserted in the amended complaint that were not already
accounted for in the NOI. The Court simply distinguished Gulley-Reaves, and we can only


4
  We note that plaintiffs contemplated such a possibility when they included language in the NOI
that the doctor failed to adhere to the standard of care as might be revealed through discovery.


                                                -8-
speculate whether it would have applied the Bush § 2301 analysis had it determined that new
claims were being raised or whether it would have applied the Gulley-Reaves opinion and
dismissed the case.5 Ultimately, Decker did not address the impact of Bush and MCL 600.2301
on a case involving new theories of negligence and causation that differed from those identified
in the NOI. Moreover, Bush is controlling Supreme Court precedent, trumping decisions by this
Court. See MCR 7.215(J)(1).6

        We do find it necessary to address Driver v Naini, 490 Mich 239, 243; 802 NW2d 311
(2011), wherein our Supreme Court held “that a plaintiff is not entitled to amend an original NOI
to add nonparty defendants so that the amended NOI relates back to the original filing for
purposes of tolling the statute of limitations[.]” (Emphasis added.) The Driver Court rejected
the plaintiff’s argument that he should be allowed to amend his original NOI pursuant to Bush
and MCL 600.2301. Id. at 251-259. The Court in Driver explained:

               Bush is inapplicable to the present circumstances. At the outset we note
       that the holding in Bush that a defective yet timely NOI could toll the statute of
       limitations simply does not apply here because CCA [nonparty defendant] never
       received a timely, albeit defective, NOI. More importantly, and contrary to the
       dissent's analysis, the facts at issue do not trigger application of MCL 600.2301. .
       ...

                                                ***

               By its plain language, MCL 600.2301 only applies to actions or
       proceedings that are pending. Here, plaintiff failed to commence an action against
       CCA before the six-month discovery period expired, and his claim was therefore
       barred by the statute of limitations. An action is not pending if it cannot be
       commenced. In Bush, however, this Court explained that an NOI is part of a
       medical malpractice proceeding. The Court explained that, since an NOI must be
       given before a medical malpractice claim can be filed, the service of an NOI is a
       part of a medical malpractice ‘proceeding. As a result, MCL 600.2301 applies to


5
  The Decker panel was aware of Bush, considering that it cited Bush with respect to explaining
the purpose of an NOI. Decker, 287 Mich App at 675-676.
6
  Plaintiffs argue that MCL 600.2912b simply requires the service of an NOI before suit is filed
and that once this is accomplished through the service of a proper and compliant NOI, as judged
at the time suit is filed and by the language in the original complaint, the requirements of the
statute have been satisfied, absent the need to revisit the NOI even if a new theory of negligence
or causation is later developed that was not included in the NOI and that forms the basis of an
amended complaint. If this were the law, the entire analysis in Decker would have been
completely unnecessary, because a proper and compliant NOI had been served on the
defendants, as judged on the date the original complaint was filed and by the language in that
complaint. Moreover, the approach suggested by plaintiffs would undermine the legislative
intent and purpose behind MCL 600.2912b.


                                               -9-
        the NOI process. Although plaintiff gave CCA an NOI, he could not file a
        medical malpractice claim against CCA because the six-month discovery period
        had already expired. Service of the NOI on CCA could not, then, have been part
        of any proceeding against CCA because plaintiff's claim was already time-barred
        when he sent the NOI. A proceeding cannot be pending if it was time-barred at
        the outset. Therefore, MCL 600.2301 is inapplicable because there was no action
        or proceeding pending against CCA in this case. [Driver, 490 Mich at 253-254
        (citations, quotation marks, alteration brackets, and emphasis omitted.]

The Driver Court later emphasized that the Bush opinion concerned “the content requirements of
MCL 600.2912b(4).” Id. at 257.

        In the instant case, the NOI was timely served on defendants, as was the complaint, an
amended NOI would not entail adding a new party, and we, like the Bush Court, are concerned
with the content requirements of MCL 600.2912b(4). Therefore, Driver is factually and legally
distinguishable and MCL 600.2301 can be considered.

        For purposes of guidance on remand, we provide the following direction. The trial court
is to engage in an analysis under MCL 600.2301 to determine whether amendment of the NOI or
disregard of the prospective NOI defect would be appropriate.7 If the trial court concludes that
amendment or disregard of the defect would not be proper under MCL 600.2301, the court’s
prior futility analysis relative to plaintiff’s motion to amend the complaint shall stand and the
motion to amend the complaint shall be denied, ending the case, subject of course to appeal on
the § 2301 analysis. If the trial court determines that MCL 600.2301 supports amendment of the
NOI or disregard of the NOI defect, thereby negating the court’s prior futility analysis,
amendment of the complaint shall be allowed, with one caveat. Aside from futility, defendants
had proffered additional reasons why amendment of the complaint should not be allowed, i.e.,
undue delay and undue prejudice, see Miller, 477 Mich at 105, which were not reached by the
trial court and are repeated by defendants in their appellate brief as alternative bases to affirm.
The trial court shall entertain those arguments if the court rules in plaintiffs’ favor on MCL
600.2301.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Having fully prevailed on appeal, plaintiffs are awarded taxable costs under
MCR 7.219.


                                                                /s/ William B. Murphy
                                                                /s/ Stephen L. Borrello
                                                                /s/ Amy Ronayne Krause




7
  We conclude that it would not be proper for us to conduct the analysis under MCL 600.2301 in
the first instance; that, at least initially, is the trial court’s role, which we shall not intrude upon.


                                                  -10-
