                         STATE OF MICHIGAN

                          COURT OF APPEALS



DELIAH SARAFA,                                                   UNPUBLISHED
                                                                 August 2, 2016
              Plaintiff-Appellee,

v                                                                No. 324636
                                                                 Wayne Circuit Court
SHIRI LEVY, M.D., GARY TALPOS, M.D.,                             LC No. 13-013340-NH
MOZEN HARAKE, M.D., and HENRY FORD
HEALTH SYSTEM, doing business as HENRY
FORD HOSPITAL,

              Defendants-Appellants.


Before: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ.

PER CURIAM.

        Defendants appeal by leave granted1 an order denying defendants’ motion for summary
disposition under MCR 2.116(C)(7) in this medical malpractice action and declining to set aside
an April 10, 2014 order extending the life of plaintiff’s summons. We reverse.

        This Court reviews “a trial court’s grant or denial of summary disposition de novo.”
Diehl v Danuloff, 242 Mich App 120, 122; 618 NW2d 83 (2000). “The court must consider any
pleadings, affidavits, depositions, admissions, or other documentary evidence that has been
submitted by the parties.” Id. at 123. “If there are no facts in dispute, whether the claim is
statutorily barred . . . is a question of law.” Id.

        This case arises from defendants’ alleged negligence in their medical treatment of
plaintiff. The parties agree that plaintiff’s cause of action accrued on May 2, 2011, when
plaintiff underwent surgery to remove her thyroid. Plaintiff alleges that during this surgery
defendants’ negligently “transected a branch of the recurrent laryngeal nerve” resulting in
plaintiff’s bilateral vocal cord paralysis.




1
 Sarafa v Levy, unpublished order of the Court of Appeals, entered January 16, 2015 (Docket
No. 324636).


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        The statute of limitations for a medical malpractice claim is two years. MCL
600.5805(6). Therefore, had plaintiff taken no action on this case on or prior to May 2, 2011,
plaintiff’s claim would be time-barred as of May 3, 2013. However, on April 11, 2013, 21 days
prior to the expiration of the statute of limitations, plaintiff filed a notice of intent to file a claim
on defendants. Under MCL 600.2912b(1), a medical malpractice plaintiff is required to give a
potential defendant notice of the claim at least 182 days prior to commencement of the claim.
MCL 600.5856(c) permits tolling of the two year statute of limitations during that 182-day notice
period. Accordingly, upon filing the notice of intent on April 11, 2013, 182 days were added to
the statute of limitations period for plaintiff’s claim. Absent proper action by plaintiff, her claim
would therefore expire after 203 days, on October 31, 2013.

        On the same day that plaintiff filed her complaint, October 15, 2013, a summons was
issued. “A summons expires 91 days after the date the complaint is filed.” MCR 2.102(D).
Accordingly, plaintiff’s summons was set to expire on January 14, 2014. As of January 2, 2014,
plaintiff had yet to serve the summons upon defendants and filed an emergency ex parte motion
to extend the life of the summons, noting that, due to clerical error, service of process on
defendants would be difficult before the summons expired on January 14, 2014. The court has
discretion, under MCR 2.102(D), to extend the life of the summons “for a definite period not
exceeding 1 year from the date the complaint is filed” after which the summons expires. In this
case, the court properly granted plaintiff’s motion to extend the life of the summons, awarding
plaintiff an additional 60 days to serve the summons upon defendants.

        The summons was therefore set to expire on March 17, 2014.2 If a summons is not
served upon the defendant before expiration, “the action is deemed dismissed without prejudice .
. . unless the defendant has submitted to the court's jurisdiction.” MCR 2.102(E). March 17,
2014, passed without plaintiff’s service upon defendants and plaintiff’s claim was dismissed
without prejudice on March 21, 2014. On April 8, 2014, plaintiff filed an emergency ex parte
motion for a nunc pro tunc order extending the life of the summons for 120 days beyond the
original expiration date and reinstating her action against defendants. The court granted
plaintiff’s motion on April 10, 2014, and defendants were served with the summons on April 23,
2014. Defendants subsequently moved to set aside that order and dismiss plaintiff’s claim as
being time-barred by the statute of limitations. The trial court’s denial of defendant’s motion
forms the basis for this appeal.

        In order to determine whether the trial court properly denied defendant’s motion, this
court must determine whether the trial court’s nunc pro tunc order granting a 120 day extension
of the life of the summons was a valid exercise of the court’s authority. We conclude that the
trial court’s nunc pro tunc order was invalid and that defendants were entitled to summary
disposition as a matter of law.




2
  As March 15, 2014, the date the summons would have expired under the extension, was a
Saturday, the court presumably extended the summons until March 17, 2014, the next business
day.


                                                  -2-
         “The function of [a nunc pro tunc] order is to supply an omission in the record of action
previously taken by the court but not properly recorded; an order nunc pro tunc may not be
utilized to supply previously omitted action.” Sleboede v Sleboede, 384 Mich 555, 558-559; 184
NW2d 923 (1971) (emphasis in original). In other words, “the purpose of a nunc pro tunc order
is not to change or alter an order or judgment actually made.” Id. at 559. “[I]ts function is not to
make an order now for then, but to enter now for then an order previously made.” Id. Therefore,
“An entry nunc pro tunc is proper to supply an omission in the record of action really had, but
omitted through inadvertence or mistake.” Workers’ Compensation Agency Director v
MacDonald’s Indus Products, Inc, 305 Mich App 460, 473 n 32; 853 NW2d 467 (2014) (citation
and quotation marks omitted).

        The trial court’s nunc pro tunc order was not supplying an “omission in the record of
action previously taken by the court but not properly recorded.” Sleboede, 384 Mich at 558-559.
The record is quite clear that, on January 14, 2014, the trial court granted plaintiff a 60 day
extension. Plaintiff did not request a 120-day extension at that time and there is no record
evidence that the trial court was attempting to grant a 120-day extension. The trial court clearly
decreed that the summons would expire on March 17, 2014, and a 120-day extension was not
even requested until April 8, 2014, after plaintiff’s extended 60-day extension had expired.
Accordingly, we cannot reasonably find that the trial court, in granting the nunc pro tunc order,
was merely correcting the record to reflect action that had previously been taken or was intended
to be taken. Therefore, we conclude that the trial court’s order was invalid under the nunc pro
tunc doctrine.

      Plaintiff argues alternatively that the trial court’s order was proper under MCR 2.108(E).
Under MCR 2.108(E):
      A court may, with notice to the other parties who have appeared, extend the time
      for serving and filing a pleading or motion or the doing of another act, if the
      request is made before the expiration of the period originally prescribed. After
      the expiration of the original period, the court may, on motion, permit a party to
      act if the failure to act was the result of excusable neglect. However, if a rule
      governing a particular act limits the authority to extend the time, those limitations
      must be observed. [emphasis added.]


In this case, plaintiff’s request for a 120-day extension of the life of the summons was made on
April 8, 2014. Since the summons expired on March 17, 2014, the request was not made “before
the expiration of the period originally prescribed.” Id. Plaintiff acknowledges that the request
was not made before the 60-day extension period expired, yet claims that the trial court’s order
was proper because the failure to serve the summons was “the result of excusable neglect.” Id.
Plaintiff explains that the failure to serve the summons within the extended time period was
brought about by a “clerical error” and “oversight” of the legal assistant to plaintiff’s counsel.
We make no determination as to whether this neglect was excusable and, even if we were to find
this neglect excusable, the trial court’s authority to extend the time for serving the summons was
limited by another rule.

         Under MCL 600.5856(a), the 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

                                                -3-
forth in the Supreme Court rules.” (emphasis added). Since we conclude that the trial court’s
order was not proper under the nunc pro tunc doctrine and plaintiff did not serve the summons
on the defendant within the 60 day extension, the statute of limitations was not tolled at the time
plaintiff filed the complaint. Accordingly, the statute of limitations on plaintiff’s claim ran on
October 31, 2013, and plaintiff’s claim became time-barred as of the expiration of the summons
on March 17, 2014.3 Thus, by the time plaintiff sought the extension, her claim was already
time-barred by the statute of limitations. MCR 2.108(E) mandates that the court observe that
limitation and, therefore, we conclude that the trial court’s order was not proper under MCR
2.108(E).

      Plaintiff’s final argument is that the trial court’s order was proper under MCL 600.2301.
Under MCL 600.2301:

       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.

Plaintiff argues that the trial court did not abuse the discretion conferred by MCL 600.2301 in
extending the summons so that the case could be decided on its merits. However, even if justice
would be furthered by allowing this case to proceed to trial, the trial court’s power to amend
under MCL 600.2301 only extends to actions pending before the court. Since plaintiff’s claim
was already time-barred by the statute of limitations before plaintiff requested the 120-day
extension, plaintiff’s action was not pending at the time of the court’s order. See Tyra v Organ
Procurement Agency of Michigan, 498 Mich 68, 90-94; 869 NW2d 213 (2015) (holding an
action “cannot be pending if it was time barred”). As the action was not pending before the court
at the time of plaintiff’s request, MCL 600.2301 does not grant the trial court authority to amend
the order. Accordingly, we conclude that plaintiff’s final argument is unsuccessful and that the
trial court’s order was invalid.

       As stated above, because we conclude that the trial court’s nunc pro tunc order was




3
  Even if the statute of limitations had been tolled at the time plaintiff filed the complaint, this
tolling would have ended upon the expiration of the summons on March 17, 2014. Only 16 days
remained on the statute of limitations at the time plaintiff filed the complaint; accordingly, even
had the statute of limitations been tolled during the life of the summons, plaintiff’s complaint
would become time-barred on April 6, 2014, two days before plaintiff motion for the 120 day
extension.


                                                -4-
invalid, plaintiff’s claim became time-barred on October 31, 2013. Accordingly, the trial court
erred in denying defendant’s motion for summary disposition. MCR 2.116(C)(7). Defendants,
being the prevailing parties, may tax costs. MCR 7.219(A).

       Reversed.

                                                          /s/ Amy Ronayne Krause
                                                          /s/ Kathleen Jansen
                                                          /s/ Cynthia Diane Stephens




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