                           STATE OF MICHIGAN

                            COURT OF APPEALS



CHRISTOPHER FOLTZ,                                                     UNPUBLISHED
                                                                       July 18, 2017
               Plaintiff-Appellant,

v                                                                      No. 332256
                                                                       St. Clair Circuit Court
JULIE FOX,                                                             LC No. 15-002575-NI

               Defendant-Appellee.


Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        In this personal injury suit, plaintiff appeals as of right from an order of the trial court
granting summary disposition in favor of defendant for the reason that the applicable statute of
limitations expired before the suit was filed. We affirm.

                                             I. FACTS

         Plaintiff alleges she was injured in an accident that occurred on June 5, 2012. It is not
disputed that the statute of limitations applicable to plaintiff’s claim is MCL 600.5805(10),
which applies to “all actions to recover damages . . . for injury to a person or property.” Under
this statute, a claim must be filed within three years “after the time of the . . . injury . . . .” MCL
600.5805(10).

        Plaintiff initiated her first lawsuit on March 31, 2015, approximately two months before
the statutory period expired. However, and despite being granted an extension of the summons,
plaintiff did not serve her complaint on defendant. The suit was dismissed for nonservice on
October 21, 2015. Plaintiff then took two actions in an attempt to save her case. First, she
attempted to convince the trial court to again extend the summons and to reopen her first case.
At the same time, she filed a second complaint, which she was able to serve on defendant within
a month.

        Plaintiff’s request for a third chance to serve her complaint was denied by the trial court.
Plaintiff filed a claim of appeal in this Court, but the appeal was dismissed for “failure to pursue
the case in conformity with the rules. MCR 7.201(B)(3) and 7.216(A)(10).” Foltz v Fox,
unpublished order of the Court of Appeals, entered February 23, 2016 (Docket No. 331188).
Plaintiff took no further action with regard to that suit.


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        Plaintiff’s second complaint is the subject of this dispute. After being served with
plaintiff’s second complaint, defendant filed a motion for summary disposition, arguing that the
complaint was barred by the applicable statute of limitations. In response, plaintiff contended
that for various reasons, the statute of limitations was tolled. The trial court disagreed, and
granted summary disposition in defendant’s favor. Plaintiff now asks this Court to reverse that
decision.

                                          II. DISCUSSION

                                   A. STANDARD OF REVIEW

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). “We also review de novo the
question whether a claim is barred by the statute of limitations and the issue of the proper
interpretation and applicability of the limitations periods.” Stephens v Worden Ins Agency, LLC,
307 Mich App 220, 227; 859 NW2d 723 (2014). Defendant’s motion cited both MCR
2.116(C)(7) and (C)(8). However, the basis of the motion was clearly that the statute of
limitations had expired. Such a motion is properly considered under MCR 2.116(C)(7). See
Nuculovic, 287 Mich App at 61.

       In reviewing a motion under subrule (C)(7), a court accepts as true the plaintiff’s
       well-pleaded allegations of fact, construing them in the plaintiff’s favor. The
       Court must consider affidavits, pleadings, depositions, admissions, and any other
       documentary evidence submitted by the parties, to determine whether a genuine
       issue of material fact exists. These materials are considered only to the extent that
       they are admissible in evidence. [Id. (citations omitted).]

                                           B. ANALYSIS

       Plaintiff first contends that tolling is warranted under MCL 600.5856, which provides:

       The statutes of limitations or repose are tolled in any of the following
       circumstances:

       (a) At the time the complaint is filed, if a copy of the summons and complaint are
       served on the defendant within the time set forth in the supreme court rules.

       (b) At the time jurisdiction over the defendant is otherwise acquired.

       (c) At the time notice is given in compliance with the applicable notice period
       under [MCL 600.]2912b, if during that period a claim would be barred by the
       statute of limitations or repose; but in this case, the statute is tolled not longer than
       the number of days equal to the number of days remaining in the applicable notice
       period after the date notice is given. [Footnote omitted.]

        Applying the plain language of subsection (a), plaintiff’s first suit failed to toll the statute
of limitations because it was never properly served. Subsection (b) does not apply for reasons to
be discussed later in our opinion. Subsection (c) has no applicability to this matter. The notice

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referenced in that subsection applies only to medical malpractice suits. See MCL 600.2912b. As
none of these provisions apply, MCL 600.5856 is of no assistance to plaintiff.

        Plaintiff’s first argument does not specify a particular subsection of the statute. Rather,
plaintiff contends that, as a general premise, “The tolling statute applies to prior lawsuits
between parties, which have not been adjudicated on the merits.” Plaintiff argues that because
the first suit was dismissed for nonservice, it was never adjudicated on the merits, and thus,
tolled the statute of limitations from the date it was filed until it was dismissed. Plaintiff is
incorrect.

        Plaintiff relies on Buscaino v Rhodes, 385 Mich 474, 482; 189 NW2d 202 (1971),
overruled by Gladych v New Family Homes, Inc, 468 Mich 594 (2003). Buscaino concerned a
matter where a complaint was filed with the trial court before the applicable statute of limitations
expired, but was not served on any defendant until after the expiration of the statutory period. Id.
at 477. Relying on 1963 GCR 101, which the Court found controlling over MCL 600.5856, the
Court concluded that the mere filing of a complaint was sufficient to commence the action, and
thus, the statute of limitations was not a bar to the suit. Id. at 477-483. In an effort to explain the
purpose of MCL 600.5856, the Court stated, “MCLA 600.5856 . . . merely provides a substitute
for the repealed CL 1948, § 609.19 . . . . It deals only with prior lawsuits between the parties
which have not adjudicated the merits of the action.” Id. at 482. Relying on Buscaino, plaintiff
contends that her first suit was not adjudicated on the merits, and thus, MCL 600.5856 applies.

         Plaintiff’s reliance on Buscaino faces two major impediments. First, the Buscaino
Court’s interpretation of MCL 600.5856 has since been overruled. Gladych, 468 Mich at 594.
The Gladych Court held that the filing of a complaint does not, alone, stop the statute of
limitations from running. Id. at 598-599, 605. Rather, one of the events described in MCL
600.5856 must also occur. Id. The Gladych Court also explicitly rejected the Buscaino Court’s
description of the purpose of MCL 600.5856. Id. at 605 (“Nothing in the statutory language of
either § 5805 or § 5856 permits limiting § 5856 to claims in which prior actions were not
adjudicated on the merits”). Second, the statutory language that was primarily at issue in
Buscaino no longer exists. In response to Gladych, our Legislature enacted 2004 PA 87, which
removed from MCL 600.5856 language discussed in Buscaino that tolled a statute of limitations
when a complaint was filed and a copy was, in good faith, given to an officer for service. See
Buscaino, 385 Mich at 477, 480-483. Our Legislature also rewrote MCL 600.5856(a). Under
the current version of the statute, a statute of limitations is tolled “[a]t the time the complaint is
filed, if a copy of the summons and complaint are served on the defendant within the time set
forth in the supreme court rules.” MCL 600.5856(a) (emphasis supplied).

        Thus, under the law applicable to this suit, the filing of plaintiff’s initial complaint alone
was not enough to toll the statute of limitations. Gladych, 468 Mich at 605. Rather, plaintiff
also had to meet one of the tolling provisions of MCL 600.5856 to stop the statute from running.
Id. Under the current version of MCL 600.5856(a), for the filing of a complaint to toll a statute
of limitations at the moment it is filed, the complaint must also be “served on the defendant
within the time set forth in the supreme court rules.” MCL 600.5856(a). It is undisputed that




                                                 -3-
plaintiff’s first complaint was never served on defendant. Accordingly, the filing of the first
complaint did not toll the statute of limitations. Gladych, 468 Mich at 605.1

       Plaintiff also argues that subsection (b) of MCL 600.5856 applies in this matter. This
subsection tolls the statute of limitations “[a]t the time jurisdiction over the defendant is
otherwise acquired.” MCL 600.5856(b). Plaintiff contends that jurisdiction was “otherwise
acquired” over defendant at the time the first complaint was filed pursuant to MCL 600.705.2
This argument, too, is flawed.

       Generally, a trial court obtains personal jurisdiction over an individual when that
individual is served with process “or by voluntary appearance.” Lucking v Welbilt Corp, 353
Mich 375, 385; 91 NW2d 346 (1958). Personal jurisdiction may also be established by consent.
MCL 600.701(3); Lease Acceptance Co v Adams, 272 Mich App 209, 219; 724 NW2d 724
(2006). It is these types of actions—i.e., substitutes for personal service—that are contemplated
by MCL 600.5856(b). As was explained in Mair v Consumers Power Co, 419 Mich 74, 82; 348
NW2d 256 (1984):

       Following as it does a description of how court jurisdiction is obtained by service
       of process, the subsection 2 phrase “jurisdiction otherwise acquired” more
       logically refers to the ways of acquiring jurisdiction other than by service of
       process, such as consent of the defendant. Thus, the structure of the tolling statute
       precludes the conclusion that the Legislature intended it to include nonjudicial
       activity as tolling events.

        Mair precludes the result advocated for by plaintiff. Plaintiff would similarly ask that
nonjudicial activity—specifically, defendant’s conduct with regard to the accident and
defendant’s ownership of property in the state— dictate whether the statute of limitations was
tolled by the first lawsuit. Mair instructs otherwise.

       Plaintiff contends that because defendant and her insurance company had notice that a
suit would be filed within the statutory period, the claim should be allowed to proceed. The case
primarily relied upon by plaintiff, Matti Awdish, Inc v Williams, 117 Mich App 270; 323 NW2d
666 (1982), actually holds the opposite. In Matti Awdish, Inc, this Court explained that “mere



1
  Plaintiff cites Federal Kemper Ins Co v Isaacson, 145 Mich App 179; 377 NW2d 379 (1985),
and Stewart v Mich Bell Tel Co, 39 Mich App 360; 197 NW2d 465 (1972), in further support of
her argument. Both cases relied on Buscaino’s reading of the former version of MCL 600.5856,
and thus, have limited, if any, relevance to this suit. Federal Kemper Ins, 145 Mich App at 183;
Stewart, 39 Mich App at 365-369. And in any event, given that both Stewart and Federal
Kemper were decided prior to November 1, 1990, neither binds this Court. MCR 7.215(J)(1).
2
  MCL 600.705 is Michigan’s long-arm statute, a statute that permits courts of this state to
exercise limited personal jurisdiction over nonresidents. See Green v Wilson, 455 Mich 342,
348-350; 565 NW2d 813 (1997) (KELLY, J.).


                                               -4-
knowledge of a lawsuit on the part of a potential party does not preclude that party from
asserting a statute of limitations defense . . . .” Id. at 278.3

         Plaintiff also argues for the application of equitable tolling. Plaintiff directs the Court to
Chabad-Lubavitch of Michigan v Schuchman, 305 Mich App 337; 853 NW2d 390 (2014), rev’d
497 Mich 1021 (2015). In that case, this Court applied the doctrine of equitable tolling to
conclude that the applicable statute of limitations in that case could be tolled while the parties
engaged in mandatory “ecclesiastical dispute resolution proceedings.” Id. at 344-346. Plaintiff
fails to note that this Court’s decision in Chabad-Lubavitch was reversed by our Supreme Court
in a brief, peremptory order:

       On order of the Court, the motion for miscellaneous relief is GRANTED. The
       application for leave to appeal the May 22, 2014 judgment of the Court of
       Appeals is considered, and pursuant to MCR 7.302(H)(1), in lieu of granting
       leave to appeal, we REVERSE the judgment of the Court of Appeals because
       there are no grounds on which to equitably toll the statute of limitations. MCL
       600.5827 and MCL 600.5829 govern the accrual of the plaintiff’s claims. The
       statutory scheme is exclusive, and neither statute contains a provision to toll the
       period of limitations. See Trentadue v Buckler Automatic Lawn Sprinkler Co, 479
       Mich 378; 738 NW2d 664 (2007). The application for leave to appeal as cross-
       appellants is considered, and it is DENIED as moot. [Chabad-Lubavitch, 497
       Mich at 1021.]

       The case cited by our Supreme Court’s order, Trentadue, explains with regard to
equitable tolling:

               As we clarified in Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590 n
       65; 702 NW2d 539 (2005), however, our use of equity in Bryant [v Oakpointe
       Villa Nursing Centre, Inc, 471 Mich 411; 684 NW2d 864 (2004)] is limited to
       those circumstances when the courts themselves have created confusion. In
       Bryant, the use of equity was appropriate because of “the preexisting jumble of
       convoluted caselaw through which the plaintiff was forced to navigate.”
       Devillers, supra at 590 n 65. Here, in contrast, plaintiff has not detrimentally
       relied on confusing, pre-existing case law. By its very nature, the discovery rule
       does not lend itself to detrimental reliance; plaintiffs seeking to invoke it do not
       wait to bring suit because they expect to rely on the rule, but because they claim
       that external factors prevented them from discovering their claims.



3
   Plaintiff also cites Cronin v Minster Press, 56 Mich App 471; 224 NW2d 336 (1974) as
support. Like other authorities relied on by plaintiff, Cronin was decided under an earlier
version of MCL 600.5856. It also concerned a different issue, that being whether a complaint
filed in a different jurisdiction tolled the statute of limitations with regard to a complaint filed in
Michigan. Cronin, 56 Mich App at 472-473. And in any event, Cronin is not binding on this
Court because it was decided prior to November 1, 1990. MCR 7.215(J)(1).


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               Perhaps most significantly, in Bryant, no controlling statute negated the
       application of equity; rather, this Court’s caselaw determined whether a claim
       sounded in medical malpractice or ordinary negligence. Devillers, supra at 590 n
       65. To the contrary, in the instant case, the statutory scheme controls limitations
       periods, accrual, and tolling, just as the no-fault act, specifically MCL
       500.3145(1), controlled the outcome in Devillers. Id. As we opined in Devillers,
       supra at 591, if courts are free to cast aside a plain statute in the name of equity,
       even in such a tragic case as this, then immeasurable damage will be caused to the
       separation of powers mandated by our Constitution. Statutes lose their meaning if
       “an aggrieved party need only convince a willing judge to rewrite the statute
       under the name of equity.” Id. Significantly, such unrestrained use of equity also
       undermines consistency and predictability for plaintiffs and defendants alike.
       [Trentadue, 479 Mich at 406-407 (emphasis supplied; footnote omitted).]

        Trentadue instructs that equitable tolling is only available in circumstances where the
courts themselves have created confusion regarding the time in which a party has to file a claim.
Here, no court caused any confusion to plaintiff. Rather, plaintiff’s arguments all focus on the
relative prejudice to the parties if the case is not permitted to proceed. These arguments have no
relevance under Trentadue. As such, plaintiff has not demonstrated that equitable tolling should
apply to save her claim.4

        In the final paragraph of her brief on appeal, plaintiff argues that it would be “against
public policy and the interest of justice” to affirm the trial court’s decision. Plaintiff again
explains that defendant and her attorney knew of the potential suit, and argues that defendant
would not be prejudiced if the suit is allowed to continue. Plaintiff contends that she, on the
other hand, will be severely prejudiced if she is not permitted to pursue her complaint. Again,
mere knowledge of the possible suit by defendant is not sufficient to avoid the statute of
limitations. Matti Awdish, Inc, 117 Mich App at 278. And as for the prejudice suffered by
plaintiff, while perhaps unfortunate, she is no different than any other plaintiff who, by operation
of a statute of limitations, is unable to pursue a claim. It is the role of the Legislature, not the
courts, to address matters of public policy. Myers v City of Portage, 304 Mich App 637, 644;
848 NW2d 200 (2014). Our Legislature has deemed it the policy of this state to place certain
limits on how long a plaintiff may wait before filing suit. Plaintiff failed to comply with those
limitations.


4
  Plaintiff discusses the showing of prejudice necessary for a defendant to assert the equitable
doctrine of laches. See, e.g., Knight v Northpointe Bank, 300 Mich App 109, 115; 832 NW2d
439 (2013) (“It is the prejudice occasioned by the delay that justifies the application of laches”).
Defendant does not assert laches, and accordingly, plaintiff’s discussion of the doctrine is not
relevant.
        Defendant discusses the doctrine of equitable estoppel in her brief on appeal, and argues
that plaintiff fails to satisfy the requirements of this doctrine. See, e.g., Doe v Racette, 313 Mich
App 105, 108-109; 880 NW2d 332 (2015). Plaintiff does not assert equitable estoppel; she
asserts equitable tolling.


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Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                  /s/ Michael F. Gadola
                                                  /s/ Patrick M. Meter
                                                  /s/ Karen M. Fort Hood




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