                           STATE OF MICHIGAN

                             COURT OF APPEALS



PAULETTE STENZEL,                                                    FOR PUBLICATION
                                                                     June 27, 2017
               Plaintiff-Appellant,

v                                                                    No. 328804
                                                                     Ingham Circuit Court
BEST BUY COMPANY, INC., and SAMSUNG                                  LC No. 14-000527-NO
ELECTRONICS AMERICA, INC.,

               Defendants-Appellees.


Before: SERVITTO, P.J., and MURPHY, CAVANAGH, FORT HOOD, BORRELLO, GLEICHER, and
SHAPIRO, JJ.

GLEICHER, J. (concurring).

        The majority holds that a statute and a court rule irreconcilably conflict and that the court
rule controls. I would hold that because the statute and the court rule are capable of
accommodation, no conflict exists. The two provisions advance precisely the same principle: a
party must be permitted to timely add an identified nonparty to a pending case. The statute adds
that the statute of limitations for the original claim does not bar the addition if the amendment
meets a time deadline. My analysis harmonizes the two provisions and yields the same result
reached by the majority.

                                                  I

         In 1995, the Legislature abrogated joint and several liability in certain tort cases,
including this one. In place of joint and several liability, the Legislature constructed a system for
allocating fault among all potential tortfeasors, parties and nonparties alike. The system permits
a plaintiff to transform an identified nonparty at fault into a party: “Upon motion of a party
within 91 days after identification of a nonparty, the court shall grant leave to the moving party
to file and serve an amended pleading alleging 1 or more causes of action against the nonparty.”
MCL 600.2957(2). The thrust of this sentence is clear. By using the word “shall,” the
Legislature declared that a party has a right to file an amended complaint converting a properly
identified nonparty at fault into a party, as long as the filing is accomplished within the 91-day
window.

        The Legislature foresaw that a newly added party might invoke the statute of limitations
as a defense. It limited the availability of this escape-hatch, however, by suspending the running
of the statute of limitations: “A cause of action added under this subsection is not barred by a

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period of limitation unless the cause of action would have been barred by a period of limitation
at the time of the filing of the original action.” MCL 600.2957(2). The Legislature thus decreed
that if a plaintiff could have timely sued the nonparty when she filed her original lawsuit, the
nonparty may not invoke the statute of limitations to avoid the suit.

        The Supreme Court distilled these commandments in a subsection of MCR 2.112. MCR
2.112(K)(2) creates a notice requirement and MCR 2.112(K)(3) details the information that must
be included in the notice. A party served with such notice, the court rule provides, “may file an
amended pleading stating a claim or claims against a nonparty within 91 days of service of the
first notice identifying that nonparty.” MCR 2.112(K)(4). The court rule makes no mention of
the statute of limitations, or of the related (and relevant) doctrine known as “relation back.” A
separate court rule addresses “relation back” as follows:

               An amendment that adds a claim or 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 . . . in the original pleading.
       [MCR 2.118(D).]

        Here, the plaintiff filed a first amended complaint naming Samsung as a defendant
without having filed a motion seeking leave to do so. Samsung successfully argued in the trial
court that plaintiff’s neglect to file a motion nullified her ability to rely on the sentence in MCL
600.2957(2) invalidating a statute of limitations defense. Samsung urged that because plaintiff
filed her amended complaint in conformity with the court rule, which does not require a motion,
she was bound by the court rule. And since that rule includes no “relation back” language,
Samsung contended, plaintiff has no right to enjoy “the best of both worlds” by relying on the
statute. In the prior opinion issued in this case, Stenzel v Best Buy Co, Inc, ___ Mich App ___,
___; ___ NW2d ___ (2016), slip op at 5, this Court elucidated the distinction as follows:

       Notably, unlike the statute, the court rule does not require leave of the court to file
       an amended complaint adding a nonparty if the amended complaint is filed within
       91 days of the notice identifying the nonparty. Further, unlike the statute, the
       court rule does not expressly provide that the amended complaint will relate back
       to the date of the original complaint.

        The majority holds that the amendment procedure in the statute and court rule conflict,
“as the Legislature only contemplated amendment by leave and our Supreme Court called for
amendment as a matter of course or right.” This conflict must be resolved in favor of the court
rule, the majority concludes, as the dispute involves a matter of practice and procedure rather
than substantive law. And regardless of the court rule’s silence regarding relation back, the
majority posits, the Legislature clearly desired “to allow the relation back of an amended
pleading,” and that statutory provision remains “fully enforceable.” Because plaintiff timely
filed her amended complaint, the majority concludes, summary judgement was improperly
granted to Samsung.

        I believe that the two provisions are capable of harmonious coexistence, and would not
declare them in conflict.


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                                                 II

        Other published cases in this Court have explored the very same issue presented here, and
with one exception I can add nothing of value to the majority’s recount of those decisions. The
exception is Bint v Doe, 274 Mich App 232, 237; 732 NW2d 156 (2007), in which then-Judge
(now Justice) ZAHRA filed a concurring opinion expressing that the statute and court rule did not
conflict “merely because the court rule uses the permissive word ‘may’ while the statute uses the
mandatory word ‘shall.’ ” Judge ZAHRA reasoned that the court rule “addresses the conduct of
the parties,” while the statute “is directed at the conduct of the court.” Id. at 237-238. These are
“consistent,” Judge ZAHRA explained:

       The plaintiff may elect to amend the complaint. If the plaintiff so elects, the court
       shall grant the amendment. There being no conflict between the statute and the
       court rule, we are bound to implement the remainder of MCL 600.2957(2), which
       provides that a “cause of action added under this subsection is not barred by a
       period of limitation unless the cause of action would have been barred by a period
       of limitation at the time of the filing of the original action. [Id. at 238.]

I would expand slightly on Judge ZAHRA’s analysis.

        Preliminarily, it bears emphasis that “only in cases of irreconcilable conflict” should a
court declare that a statute “supplants the Court’s exclusive authority under Const 1963, art 6, § 5
to promulgate rules regarding the practice and procedure of the courts.” People v Watkins, 491
Mich 450, 467; 818 NW2d 296 (2012). Usually the potential conflict arises when a newly
enacted statute clashes with an established rule of procedure—in Watkins, MRE 404(b), and in
McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999), MRE 702. This case distinctly
differs from that norm. Here, the statute came first, and the court rule followed. The court rule
was intended as an adjunct to the new nonparty at-fault system. As this Court has previously
explained, the Supreme Court promulgated MCR 2.112(K)(4) “to implement MCL 600.2957.”
Holton v A+ Ins Assoc, Inc, 255 Mich App 318, 324; 661 NW2d 248 (2003).

         Indisputably, when the Supreme Court approved MCR 2.112(K)(4), it knew that the
Legislature intended to remove the discretion of a trial court to deny a timely request to add an
identified nonparty at fault as a party defendant: “the court shall grant leave to the moving party
to file and serve an amended pleading.” (Emphasis added.) In other words, when drafting the
court rule intended to complement this statute, the Supreme Court understood that a timely
request to amend had to be granted. “Upon motion,” the words chosen by the Legislature,
describe one way of amending. Those words generally mean “at the request of a party.”
Nothing in the statute precludes a party from achieving the same result—an amendment—by
another means.

        Accordingly, the Supreme Court evidently decided that the court rule would permit a
plaintiff to file an amended complaint adding an identified nonparty as a party without first filing
a motion. In my view, the court rule and the statute are entirely consistent with regard to the
central and controlling issue: a plaintiff’s right to timely amend a complaint to add an identified
nonparty at fault as a party. Read together, the two provisions permit a plaintiff to file a motion


                                                -3-
to amend, or not. Either way, the result is the same: the amendment must be permitted if it is
timely. I see no irreconcilable conflict.1

        A somewhat analogous case, Apsey v Mem Hosp, 477 Mich 120; 730 NW2d 695 (2007),
contributes to my reasoning. Apsey involved two statutes addressing the notarization of out-of-
state affidavits. One statute required that such affidavits include a clerk’s certification and seal.
The other required only the signature of the notary and an affixed seal. This Court decided that
the more specific statute controlled. Apsey v Mem Hosp (On Reconsideration), 266 Mich App
666; 702 NW2d 870 (2005). The Supreme Court reversed, holding that the two methods of
proving a notarial act constituted equally acceptable alternatives, explaining:

       The Legislature need not repeal every law in a given area before it enacts new
       laws that it intends to operate in addition to their preexisting counterparts. The
       Legislature has the power to enact laws to function and interact as it sees fit. And
       when it does so, this Court is bound to honor its intent. [Id. at 131.]

        In my view, the statute and court rule at issue here are similarly complementary. If a
plaintiff wishes to file a motion to add a nonparty, so be it. Strategic reasons may motivate this
choice, such as compelling the defendant to respond to certain allegations in the plaintiff’s
motion, or educating the trial court about the issues. If time is of the essence, a plaintiff may
instead elect to simply file an amended complaint. As in Apsey, the two alternative methods of
accomplishing the same goal can live happily together, side by side.

        Nor does a conflict exist regarding “relation back.” MCL 600.2957(2) states that the
statute of limitations does not bar a “cause of action added under this section” unless the added
cause would have been barred when the original case was filed. In essence, this subsection of
the statute provides for tolling of the statute of limitations for claims against timely added
nonparties at fault. That MCR 2.112(K) does not contain a similar tolling provision is of no
moment. I cannot conceive of why the absence of a relation back provision would foreclose
relation back, given the Legislature’s directive that the statute of limitations does not bar a claim
against properly added parties. The court rule’s mere silence regarding the statute of limitations
does not create a conflict. Rather, I would hold that the comprehensive statutory scheme created


1
 There is yet another way to resolve this case without declaring a conflict between the statute
and the court rule. MCL 600.2301 provides:
       The court in which any action is pending, has power to amend any process,
       pleading or proceeding 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.

Plaintiff’s failure to file an amended complaint in this case amount to a harmless error which the
trial court should have disregarded.


                                                -4-
to replace joint and several liability includes a quasi-tolling provision applicable to added parties
that the courts must enforce. Simply put, there is no inconsistency with the language of MCR
2.112(K). The statute specifically covers “relation back.” The court rule does not. It would be
antithetical to the Legislature’s approach to hold that the relation-back provision in MCL
600.2957(2) does not apply. The statute fills in for the court rules’ silence on this subject.

        Indeed, even comparing the language of MCR 2.118(D) and the statute, I find harmony
rather than discord. The former declares that “a claim . . . relates back to the date of the original
pleading,” and the latter states that “a cause of action added under this subsection is not barred
by a period of limitations. . . .” These provisions agree, in my view.2

       I would decide this case simply and cleanly by holding that plaintiff was permitted by
both the statute and the court rule to file her amended complaint with or without first filing a
motion to amend, and that the amendment relates back. Because the majority has adopted an
analysis that creates constitutional conflict where none need exist, I concur only in the result.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro




2
  I acknowledge that in Miller v Chapman Contracting, 477 Mich 102, 106; 730 NW2d 462
(2007), the Supreme Court held that the relation-back doctrine codified in MCR 2.118(D) does
not encompass the addition of new parties. But when a comprehensive statutory scheme is
intended to preempt the common law, the common law must yield. Jackson v PKM Corp, 430
Mich 262, 277; 422 NW2d 657 (1988). In crafting MCL 600.2957(2), the Legislature eliminated
the common law of joint and several liability in certain tort cases, concomitantly opening the
door to the timely addition as a party of a nonparty identified by a defendant as at fault. The
nullification of a statute-of-limitations defense to the addition serves as an integral part of this
sea change in Michigan law, as it permits the jury to fairly distribute fault among all identified
tortfeasors. This clear expression of legislative intent constrains the Supreme Court’s common
law interpretation of MCR 2.118(D) in cases falling under MCL 600.2957(2).


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