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Docket Number

Docket No. 103374.

Attorney(S)

Pinsky, Smith, Fayette, Soet Hulswit (by H. David Soet), for plaintiff. Burch, Dettman Banyon (by Donald D. Dettman), and Butzbaugh Ryan (by John E. Dewane), for defendants.

Judges

PER CURIAM.

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Smart Summary

Case Summary: Lausman v Benton Township, Docket No. 103374 (Mich. Ct. App. May 23, 1988)

Factual and Procedural Background

Linda Lausman alleged she involuntarily resigned from her position as a juvenile officer with the Benton Township Police Department on December 1, 1980, as a result of sex discrimination. She first filed a complaint with the Michigan Civil Rights Commission. On August 14, 1984, the commission granted her request to dismiss that complaint so she could proceed in circuit court.

On January 19, 1982, Lausman commenced a circuit court action naming Benton Township and various municipal officers and employees as defendants; that action was dismissed on October 3, 1983 for lack of progress. On August 14, 1985, she filed the present circuit court action against the same defendants alleging sex discrimination under the Michigan Civil Rights Act (MCL 37.2101 et seq.).

Defendants moved for summary disposition under MCR 2.116(C)(7) on statute-of-limitations grounds. The parties agreed the three-year limitation period of MCL 600.5805(8) applied and that the cause of action accrued December 1, 1980; the sole disputed issue was how long the limitation period was tolled by the prior (1982) suit that was later dismissed.

Legal Issues Presented

Whether the trial court erred in granting summary disposition under MCR 2.116(C)(7) based on the statute of limitations.
Whether the tolling provision of MCL 600.5856(3) is triggered by the filing of a prior complaint in the circuit court or by placing a copy of the summons and complaint in the hands of an officer for immediate service (i.e., whether tolling commenced on January 19, 1982, the filing date, or on January 22, 1982, the date defendants say the papers were delivered to an officer for service).

Arguments of the Parties

Plaintiff's Arguments

Plaintiff contended the tolling period commenced on January 19, 1982—the date she filed her prior complaint in the circuit court—relying on MCR 2.101(B), which establishes filing of a complaint as the commencement of an action.
Plaintiff also submitted evidence that defendants had actual knowledge of her prior action prior to January 22, 1982, as factual support opposing defendants' motions.

Defendants' Arguments

Defendants argued the tolling period began on January 22, 1982—the date a copy of the complaint and summons was placed in the hands of an officer for service—and continued until the prior action's dismissal on October 3, 1983.
As factual support for their computation, defendants submitted the affidavit of the officer who was given the complaint and summons for service; under defendants' calculation, the statute of limitations expired two days before plaintiff commenced the present action on August 14, 1985.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mair v Consumers Power Co, 419 Mich. 74, 85; 348 N.W.2d 256 (1984)	That tolling provisions, like statutes of limitation, are of legislative creation and that exceptions to statutes of limitation are strictly construed.	The court cited Mair to support the proposition that tolling provisions are statutory and thus must be applied according to their terms and confined to their legislative scope.
Buscaino v Rhodes, 385 Mich. 474, 481; 189 N.W.2d 202 (1971)	That to toll the running of a period of limitation means to show facts removing its bar, and that the material inquiry is the period during which the statute was tolled.	The court relied on Buscaino to emphasize that the relevant question is the actual tolling period and that tolling under MCL 600.5856(3) is not triggered until the summons and complaint are placed in the hands of an officer for service.
Frazier v Castellani, 130 Mich. App. 9, 14; 342 N.W.2d 623 (1983), lv den 419 Mich. 935 (1984)	That tolling provisions protect a plaintiff's right to bring an action and prevent a defendant from defeating a claim by absenting himself from the jurisdiction; contrasted with statutes of limitation which promote diligence and prevent stale claims.	The court cited Frazier to describe the purpose of tolling provisions and to contrast them with statutes of limitation, reinforcing that tolling must be applied where legislatively permitted.
Affiliated Bank of Middleton v American Ins Co, 77 Mich. App. 376, 379; 258 N.W.2d 232 (1977)	That the tolling provision has been liberally construed to permit litigation of apparently valid claims of which defendant had timely notice.	The court referenced this case to acknowledge prior liberal construction of the tolling provision but noted the provision applies only to prior suits that did not adjudicate the merits and only when the present action was not commenced within the limitation period.
Sanderfer v Mt Clemens General Hospital, 105 Mich. App. 458; 306 N.W.2d 322 (1981)	Support for the proposition that tolling for a prior suit is tied to placing the summons and complaint in the hands of an officer for immediate service.	The court cited Sanderfer in support of its interpretation that MCL 600.5856(3) tolling requires delivery to an officer for service before tolling commences.
Andrews v Allstate Ins Co, 479 F. Supp. 481 (ED Mich, 1979)	Federal district court authority cited in the opinion supporting the same point that tolling is triggered by placement in the hands of an officer for service.	The court relied on Andrews as additional authority consistent with the conclusion that the tolling statute's operation depends on delivery to an officer for service.

Court's Reasoning and Analysis

The Court of Appeals addressed whether plaintiff's August 14, 1985 complaint was time-barred under the three-year limitation of MCL 600.5805(8), given accrual on December 1, 1980. Because the complaint was filed more than three years after accrual, the case turned on whether the limitation period was tolled by plaintiff's prior 1982 action.

The court observed that tolling provisions are statutory constructs and exceptions to statutes of limitation are strictly construed. It identified MCL 600.5856 as the governing tolling statute and recited subsection (3), which refers to tolling when "the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service," with a ninety-day limit in that circumstance.

Relying on Buscaino and related authority, the court held that the critical fact is the period during which the statute was tolled, not merely the technical date the prior suit was "commenced" under court rules. The court concluded that MCL 600.5856(3) does not tolled the statute merely by filing a complaint; rather, tolling under that subsection did not begin until the summons and complaint were placed in the hands of an officer for immediate service. Applying that rule to the undisputed record — including the officer's affidavit submitted by defendants showing the papers were given to an officer on January 22, 1982 — the court determined the tolling period did not begin on the filing date asserted by plaintiff (January 19, 1982).

Because the tolling period, as properly measured under the statute and controlling precedent, did not extend plaintiff's limitations period sufficiently to render her August 14, 1985 filing timely, the trial court correctly granted summary disposition under MCR 2.116(C)(7).

Holding and Implications

Holding: The judgment of the trial court granting summary disposition for defendants under MCR 2.116(C)(7) on statute-of-limitations grounds is AFFIRMED.

Implications: The direct effect is that plaintiff's August 14, 1985 action was time-barred because the tolling provision at MCL 600.5856(3) did not commence on the filing date of her prior suit but on the date the summons and complaint were placed in the hands of an officer for immediate service; under that measurement the limitations period expired before the present action was filed. The opinion does not announce a new rule of law beyond applying existing statutory text and precedent; it enforces the statutory requirement that tolling under subsection (3) requires delivery to an officer for service.

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LAUSMAN v BENTON TOWNSHIP

PER CURIAM.

This case comes to us on remand from our Supreme Court pursuant to MCR 7.302(F)(1) for consideration as on leave granted. The sole issue is whether the trial court erred in granting summary disposition under MCR 2.116(C)(7) in favor of defendants based on the statute of limitations. We affirm.

The instant case was the last of three proceedings commenced by plaintiff Linda Lausman based on an allegation that she involuntarily resigned from her position as a juvenile officer with the Benton Township Police Department on December 1, 1980, as a result of sex discrimination. Plaintiff first filed a complaint with the Michigan Civil Rights Commission. On August 14, 1984, the commission granted plaintiff's request to dismiss her complaint against defendant Benton Township so that she could proceed with her sex discrimination claim in the circuit court.

Next, on January 19, 1982, plaintiff commenced a circuit court action by filing a complaint which named as defendants Benton Township, the Benton Township Police Department, Township Supervisor James Benson, Police Chief Paul Farris, Police Captain Jack Drach, and police officers Dave Nelson, Kim Fowler and Richard Davis. On October 3, 1983, that action was dismissed for lack of progress.

On August 14, 1985, plaintiff commenced the instant action in circuit court against the same defendants, alleging sex discrimination under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.

In response to the complaint, defendants Davis and Nelson filed a motion for summary disposition under MCR 2.116(C)(7) on the basis of the statute of limitations. The other defendants followed with a similar motion on September 4, 1985. The record of the motion hearing, held on May 27, 1986, reveals no material dispute except for the issue of how long the limitation period was tolled as a result of plaintiff's prior circuit court action which had been dismissed for lack of progress. The circuit court resolved the motions based on the parties' briefs and their supporting proofs.

The undisputed facts were that the three-year limitation period of MCL 600.5805(8); MSA 27A.5805(8) applied to plaintiff's complaint of August 14, 1985, and that plaintiff's cause of action accrued on December 1, 1980, which was her last date of employment. Since the complaint was filed more than three years after plaintiff's cause of action accrued, it was not disputed that plaintiff's claim was barred unless the limitation period was tolled.

Relying on the tolling statute, MCL 600.5856; MSA 27A.5856, defendants argue that the limitation period was tolled commencing January 22, 1982, the date a copy of plaintiff's complaint was placed in the hands of an officer for service, until October 3, 1983, the date plaintiff's complaint was dismissed. As factual support for their motions, defendants submitted the affidavit of the officer who was given plaintiff's complaint and summons for service. Under defendants' computation, the limitation period expired two days prior to plaintiff's commencing her present action on August 14, 1985.

By contrast, plaintiff contended that the tolling period commenced on January 19, 1982, the date she filed her prior complaint in the circuit court. Thus, under plaintiff's computation, she filed her present action one day before the limitation period expired. Plaintiff argued that the tolling statute, when read with MCR 2.101(B), the court rule establishing the filing of a complaint as the commencement of an action, supported her position. In addition, and as factual support in opposition to defendants' motions, plaintiff submitted evidence of defendants' actual knowledge of her action prior to January 22, 1982.

In granting summary disposition in favor of defendants, the circuit court agreed with defendants' interpretation of the tolling statute. On appeal, plaintiff continues to argue that the tolling period commenced on January 19, 1982. We disagree.

Tolling provisions, like statutes of limitation, are of legislative creation. Mair v Consumers Power Co, 419 Mich. 74, 85; 348 N.W.2d 256 (1984). To toll the running of a period of limitation means to show facts removing its bar of the action. Buscaino v Rhodes, 385 Mich. 474, 481; 189 N.W.2d 202 (1971). Tolling provisions protect a plaintiff's right to bring an action and prevent a defendant from defeating a claim by absenting himself from the jurisdiction. Frazier v Castellani, 130 Mich. App. 9, 14; 342 N.W.2d 623 (1983), lv den 419 Mich. 935 (1984). By contrast, the statutes of limitation are designed to promote a plaintiff's diligence, to prevent the litigation of stale claims, and to establish a reasonable, but limited, time for bringing an action. Id., p 14. Generally, exceptions to statutes of limitation are strictly construed. Mair, supra, p 80.

Here, the tolling statute in question provides:

The statutes of limitations are tolled when (1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when

(2) jurisdiction over the defendant is otherwise acquired, or when,

(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter. [MCL 600.5856; MSA 27A.5856.]

This provision has been liberally construed by this Court to allow the litigation of apparently valid claims of which defendant had timely notice. Affiliated Bank of Middleton v American Ins Co, 77 Mich. App. 376, 379; 258 N.W.2d 232 (1977). However, the provision deals only with prior lawsuits which have not adjudicated the merits of the action and does not come into play unless the present action was not commenced within the limitation period. Buscaino, supra, pp 481-482.

Plaintiff's contention that her prior action was commenced on the filing of her complaint may be true under MCR 2.101(B), Buscaino, supra, p 481, but the date of commencement of the prior action is immaterial. The material fact, as pointed out in Buscaino, is the period during which the statute of limitations was tolled, and tolling was not triggered under MCL 600.5856(3); MSA 27A.5856(3), as to a prior suit until "the summons and complaint in good faith, are placed in the hands of an officer for immediate service. . . ." Sanderfer v Mt Clemens General Hospital, 105 Mich. App. 458; 306 N.W.2d 322 (1981); Andrews v Allstate Ins Co, 479 F. Supp. 481 (ED Mich, 1979).

Accordingly, the trial court did not err in granting summary disposition in favor of defendants under MCR 2.116(C)(7). The tolling period did not commence until plaintiff's complaint and summons were placed in the hands of an officer for immediate service. MCL 600.5856(3); MSA 27A.5856(3).

Affirmed.

LAUSMAN v. BENTON TOWNSHIP