James Wade v. William McCadie Do ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JAMES WADE, UNPUBLISHED
November 14, 2017
Plaintiff-Appellant,
v No. 335418
Iosco Circuit Court
WILLIAM MCCADIE, D.O. and ST. JOSEPH LC No. 13-007515-NH
HEALTH SYSTEM, INC. doing business as
HALE ST. JOSEPH MEDICAL CLINIC,
Defendant-Appellees.
Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff, James Wade, appeals by right the trial court’s
order granting summary disposition in favor of defendants, William McCadie, D.O. and St.
Joseph Health System, Inc., under MCR 2.116(C)(7) (statute of limitations). Because the trial
court did not err by granting summary disposition, we affirm.
I. BASIC FACTS
The relevant facts were set forth in this Court’s prior opinion in this matter.
Plaintiff alleged that following medical examinations in February 2012, he
was advised by his treating doctors that he was suffering from renal and kidney
failure as a result of poorly controlled hypertension. According to plaintiff,
defendant William McCadie, D.O., his regular doctor, breached his duty of care
over a prolonged period by failing to properly manage and treat plaintiff’s
condition, leading to plaintiff’s renal and kidney failure. Plaintiff alleged a series
of errors on McCadie’s part beginning in 2008. Plaintiff admits that his claim
accrued on April 21 or 25, 2011, the date when McCadie should have first been
aware of plaintiff’s renal dysfunction, and that he had until April 21 or 25, 2013
to file his claim under the two-year statute of limitations for malpractice actions.
According to plaintiff, he first requested medical records from defendant
Hale St. Joseph’s Medical Clinic on April 2, 2012. The clinic allegedly prepared
a bill for copying plaintiff records on April 23, 2012, which stated, “Records are
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complete and ready to be mailed.” Plaintiff asserts that he paid the requested
copying fee on April 26, 2012.
On August 21, 2012, plaintiff’s counsel mailed a notice of intent to file
suit to defendants St. Joseph Health System and Hale St. Joseph’s Medical Clinic
and requested access to all of plaintiff’s medical records within their control,
including billing and payment records, within 56 days under MCL 600.2912b(5). .
..
Plaintiff filed his complaint on February 22, 2013, and on February 28,
2013, submitted a request for production of documents, including all medical and
billing records in defendants’ control. On May 15, 2013, defendants’ counsel sent
a letter to plaintiff’s counsel, stating the following:
At our meeting to exchange medical records for the above
referenced case on April 24, 2013, you had requested that we look
into whether your client’s laboratory records for the time period
prior to 1992 were available.
Michigan Public Health Code section 333.16213(1) only
requires that medical records be retained for a minimum of (7)
years, however, we also asked our client to examine their records
again to see if the laboratory results were still in existence. Upon
information and belief, laboratory results pertaining to [plaintiff]
for the time period prior to 1992 no longer exist. Those records
were destroyed in a manner consistent with the requirements of
Michigan Public Health Code section 333.16213(4).
On May 7, 2013, defendants filed a motion for summary disposition under
MCR 2.116(C)(7), arguing that plaintiff failed to provide an affidavit of merit
with his complaint as required by MCL 600.2912d. Plaintiff filed a response to
defendants’ motion for summary disposition on May 28, 2013, along with an
affidavit of merit signed by Richard Stern, M.D., who opined, based on a review
of plaintiff’s medical records, that McCadie’s negligent acts and omissions were
the direct and proximate cause of plaintiff’s acute renal failure in February 2012.
Plaintiff argued that he was permitted to file the affidavit of merit within 91 days
of the complaint under MCL 600.2912d(3) because defendants failed to provide
him with his complete medical records as they were required to do under MCL
600.2912b(5).
Defendants replied that they mailed plaintiff’s counsel all of plaintiff’s
medical records within their control in April 2011, which is all that is required of
them under MCL 600.2912b(5). Defendants also argued that medical records
between 1979 and 1992 were not related to plaintiff’s malpractice claim, as
required under MCL 600.2912b(5), and that plaintiff received enough records to
file an affidavit of merit.
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At the hearing on defendants’ motion, defendants’ counsel said she had no
knowledge of any records in defendants’ possession that were not provided to
plaintiff, but that some of his records had been destroyed. The trial court granted
defendants’ motion on the basis that plaintiff had failed to show that defendant
did not comply with MCL 600.2912b(5), explaining as follows:
All right. Well, I’m granting defendant’s motion for
summary disposition in this case. I . . . think defendant has
complied with the statute, especially considering basically the
defendant being able to destroy records that are more than seven
years old. Did I say that right? I mean, we have . . . a situation
here where plaintiff is, I guess, asking me to find that plaintiff was
excused from filing this Affidavit of Merit with the Complaint by
that exception, and I just think that plaintiff has failed to show that
the exception applies so, therefore, I am granting defendant’s
motion.
The trial court entered its order granting defendants’ motion on June 20,
2013 and entered a final order dismissing the case on August 2, 2013. [Wade v
McCadie, unpublished opinion per curiam of the Court of Appeals, issued January
29, 2015 (Docket No. 317531), pp 1-3.]
This Court concluded that although Wade had not filed an affidavit of merit with his
complaint, as required by MCL 600.2912d(1), there were two exceptions to that requirement.
Id., unpub op at 4. Relevant to the earlier appeal, this Court determined that the exception in
MCL 600.2912d(3) applied because defendants had failed to allow access to Wade’s medical
records within 56 days of receiving his notice of intent to sue under MCL 600.2912b(5). Id.
Accordingly, this Court held that, under MCL 600.2912d(3), Wade’s affidavit of merit could be
filed within 91 days of his February 22, 2013 complaint. Id.
Defendants appealed this Court’s decision to our Supreme Court, which vacated a portion
of the prior opinion because the panel erroneously applied an inapplicable statutory definition of
the phrase “medical record. Wade v McCadie, 499 Mich. 895 (2016). However, the Supreme
Court did not reverse the result reached in this Court’s prior opinion because the same result
would have been reached by applying the plain meaning of the phrase “medical record.” Id.
Upon return to the trial court, defendants again moved for summary disposition under
MCR 2.116(C)(7). Defendants argued that in order to be timely filed under the 91-day extension
permitted by MCL 600.2912d(3), Wade had until May 24, 2013 to filed his affidavit of merit, but
the affidavit of merit was not actually filed until May 28, 2013. Because the affidavit of merit
was untimely under MCL 600.2912d(3) and because the two-year statute of limitations for
medical malpractice claims had expired, defendants argued that the claim had to be dismissed
with prejudice. In support, defendants attached a copy of the affidavit of merit which had a date
and time stamp on the first page stating “FILED 2013 May 28 A 10:25.”
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In response, Wade asserted that the affidavit of merit was delivered to the Iosco Circuit
Court on May 24, 2013 and a copy of it was electronically transmitted to defendants’ lawyer on
May 23, 2013. In support, he submitted a copy of a United States Postal Services receipt, which
stated that Wade’s lawyer sent a package via overnight mail to the “Iosco County Circuit Ct” on
May 23, 2013 and that the “scheduled” time of delivery was at 3:00 p.m. on May 24, 2013. He
also submitted a May 23, 2013 e-mail from his lawyer to defendants’ lawyer that indicated the
affidavit of merit was attached. Finally, Wade submitted an undated proof of service indicating
that a copy of his affidavit of merit “was served upon counsel for Defendant by placing same in
an envelope and mailing it though the U.S. Postal Service . . . and by sending a copy of the same
by e-mail on May 24, 2013.”1 Wade argued that his documentary evidence demonstrated that
the affidavit of merit had been timely filed “even though it may not have been formally stamped
by the clerk.” He also argued that further proof that the affidavit of merit was not timely
stamped by the clerk was evident by reference to a calendar. Specifically, he asserted that May
28, 2013 was the Tuesday following the Memorial Day holiday, and he speculated that on May
24, 2013 when the affidavit of merit was delivered to the court, “the approaching weekend
holiday may well explain why it was not formally stamped by the clerk.” Wade also argued that
because defendants had a copy of the affidavit of merit within 91 days of the complaint being
filed, there was no prejudice to defendants, so dismissal was not proper. Wade briefly suggested
that the trial court should use its power under MCL 600.2301 to amend the affidavit of merit in
order to further the interests of justice. Finally, at oral argument, Wade raised the issue of
equitable estoppel, and he asserted that defendants’ lawyer had admitted that the affidavit of
merit was filed on May 24, 2013. Wade’s lawyer also represented to the court that he could not
get a confirmation of delivery from the postal service because it only kept records for six months
following a delivery, but the issue had not been raised until three years after delivery.
Following oral argument, the trial court granted defendants’ motion for summary
disposition, reasoning that the affidavit of merit was time stamped as filed on May 28, 2013 and
that there was no proof that it was delivered on May 24, 2013 and inadvertently was not stamped
until May 28, 2013. The trial court also denied Wade’s request for an evidentiary hearing to
determine whether the clerk failed to timely stamp the affidavit of merit (or would sometimes
fail to stamp documents the same day that they were received).
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Wade argues that the trial court erred by granting summary disposition in defendants’
favor. He argues that the trial court erred by determining that the date stamp on the affidavit of
1
A time-stamped copy of the proof of service is part of the lower court record. That document
indicates that the proof of service was filed on May 28, 2013, and it includes a signature page,
which was signed by Wade’s lawyer and is dated May 24, 2013. Additionally, although the
proof of service states that a copy of the affidavit of merit was e-mailed to defendants’ lawyer on
May 24, 2013, the e-mail attached in support of Wade’s response to summary disposition is
dated May 23, 2013.
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merit conclusively determined what date it was filed despite the fact that he produced significant
circumstantial evidence suggesting that it was received by the Iosco Clerk’s Office on May 24,
2013 and was simply not stamped until May 28, 2013. We review de novo a trial court’s
decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance
Engineering, Inc, 285 Mich. App. 362, 369; 775 NW2d 618 (2009).
B. ANALYSIS
A plaintiff bringing a medical malpractice claim must generally file with his or her
complaint an affidavit of merit that meets the requirements of MCL 600.2912d(1). “[F]or statute
of limitations purposes in a medical malpractice case, the mere tendering of a complaint without
the required affidavit of merit is insufficient to commence the lawsuit.” Scarsella v Pollak, 461
Mich. 547, 549; 607 NW2d 711 (2000) (citation and quotation marks omitted). Therefore, “when
a plaintiff wholly omits to file the affidavit required by MCL 600.2912d(1), the filing of the
complaint is ineffective, and does not work a tolling of the applicable period of limitations.”
Ligons v Crittenton Hosp, 490 Mich. 61, 73; 803 NW2d 271 (2011) (citation and quotation marks
omitted). Furthermore, “[w]hen the untolled period of limitations expires before the plaintiff
files a complaint accompanied by an [affidavit of merit], the case must be dismissed with
prejudice on statute-of-limitations grounds.” Id.
There are two exceptions to the general requirement in MCL 600.2912d(1). First, under
MCL 600.2912d(2), “for good cause shown,” a party may file a motion in the trial court for a 28-
day extension in which to file the affidavit of merit required under MCL 600.2912d(1). See
Solowy v Oakwood Hosp Corp, 454 Mich. 214, 228-229; 561 NW2d 843 (1997) (recognizing that
a plaintiff may be unable to obtain an affidavit of merit within the requisite time period, in which
case “the plaintiff’s attorney should seek the relief available in MCL 600.2912d(2)”); see also
Castro v Goulet, 312 Mich. App. 1, 4-5; 877 NW2d 161 (2015) (stating that the statute of
limitations is tolled if a plaintiff is granted a 28-day extension to file his or her affidavit of merit
under MCL 600.2912d(2)).
The second exception—and the one at issue in this case—provides:
(3) If the defendant in an action alleging medical malpractice fails to allow
access to medical records within the time period set forth in [MCL 600.2912b(6)],
the affidavit required under subsection (1) may be filed within 91 days after the
filing of the complaint. [MCL 600.2912d(3).]
Although it does not appear that any court has held that an affidavit of merit filed within the 91-
day extension allowed under MCL 600.2912d(3) serves to toll the statute of limitations, our
Supreme Court stated in Solowy that during the 28-day extension permitted under MCL
600.2912d(2), the statute of limitations is tolled. Solowy, 454 Mich. at 229. Similarly, because
there is no practical difference between the extension permitted under MCL 600.2912d(2) and
the extension permitted under MCL 600.2912d(3), we conclude that the statute of limitations is
tolled for the 91-day extension permitted under MCL 600.2912d(3).
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In the prior appeal, this Court held that Wade was entitled to the 91-day extension in
MCL 600.2912d(3). Therefore, the question we must now determine is whether he successfully
filed his affidavit of merit within that time period.
Wade contends that the affidavit of merit was filed on May 24, 2013. In support, he
directs this Court to a number of facts. First, he mailed a copy of the affidavit of merit to the
Iosco Circuit Court on May 23, 2013, and his receipt from the United States Postal Services
indicates a scheduled arrival before 3:00 p.m. on May 24, 2013. However, mailing a document
does not constitute “filing” a document. Hollis v Zabowski, 101 Mich. App. 456, 458; 300 NW2d
597 (1980). Moreover, it has long been established that “a paper or document is filed, so far as
the rights of the parties are concerned, when it is delivered to and received by the proper office to
be kept on file . . . .” People v Madigan, 223 Mich. 86, 89; 193 NW2d 806 (1923). Here,
although Wade mailed the affidavit of merit to the trial court on May 23, 2013, he provided no
proof that it was delivered to and received by the clerk of the Iosco Circuit Court on May 24,
2013. Based on our review of the lower court record, the only proof of when the affidavit of
merit was received by the lower court is (1) the lower court register of actions for this case and
(2) the date-stamp on the first page of the affidavit of merit. See MCR 8.119(C) (requiring the
clerk of the court to “endorse on the first page of every document the date on which it is filed”)
and MCR 2.107(G) (stating that in the event that the clerk “records the receipt of materials on a
date other than the filing date, the clerk shall record the filing date on the register of actions”). In
this case, the first page of the affidavit of merit is date-stamped May 28, 2013, and the register of
actions does not indicate that the affidavit of merit was received earlier and merely not stamped
until May 28, 2013. Accordingly, the trial court did not err by concluding that the affidavit of
merit was filed on May 28, 2013.
On appeal, Wade suggests that the outcome of this case is controlled by VandenBerg v
VandenBerg, 231 Mich. App. 497; 586 NW2d 570 (1998) (VandenBerg I). We disagree. In that
case, the trial court dismissed the plaintiff’s complaint because she failed to file an affidavit of
merit with her complaint as required by MCL 600.2912d(1). Id. at 498-499. This Court reversed
and remanded to the trial court, reasoning that a less severe sanction was appropriate because the
defendants did not suffer any prejudice as they had been served with the affidavit of merit along
with the complaint. Id. at 502-503. On remand, however, the trial court granted summary
disposition in favor of defendants because the claim was barred by the statute of limitations, and
the plaintiff again appealed to this Court. VandenBerg v VandenBerg, 253 Mich. App. 658; 660
NW2d 341 (2002) (VandenBerg II). In VandenBerg II, this Court explained that although the
complaint was filed within the limitations period, the affidavit of merit was filed outside the
limitations period. Id. at 661. Relying on this Court’s decision in Scarsella v Pollak, 232 Mich
App 61; 591 NW2d 257 (1998), aff’d 461 Mich. 547; 607 NW2d 711 (2000), the VandenBerg II
Court explained:
In Scarsella, this Court recognized that, “[g]enerally, a civil action is
commenced and the period of limitation is tolled when a complaint is filed,” but
that “medical malpractice plaintiffs must file more than a complaint; ‘they shall
file with the complaint an affidavit of merit. . . .’ ” [Scarsella, 232 Mich App] at
63-64, quoting MCL 600.2912d(1). The Scarsella panel reasoned that the
Legislature’s use of the word “shall” indicates that the accompaniment of an
affidavit is mandatory, and that, therefore, “the mere tendering of a complaint
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without the required affidavit of merit is insufficient to commence the lawsuit.”
Id. at 64. Noting that, by providing for a twenty-eight day extension for the filing
of an affidavit, the Legislature provided a remedy for “those instances where an
affidavit cannot accompany the complaint,” see MCL 600.2912d(2), the panel
determined that unless a plaintiff has moved for the statutorily provided
extension, a plaintiff was not permitted to file a complaint without the affidavit,
then attempt to “amend” the complaint by later supplementing the filing with an
affidavit of merit. [Id.] at 65. Here, plaintiff filed the affidavit of merit beyond
the period set by the applicable statute of limitations, but failed to move for an
extension. Accordingly, plaintiff’s suit was not timely commenced and the trial
court properly granted summary disposition in favor of defendants. [VandenBerg
II, 253 Mich. App. at 661-662 (emphasis added).]
In sum, the VandenBerg I Court held that a dismissal was not required as a sanction when the
defendant suffered no prejudice from the failure to file an affidavit of merit with the complaint,
and the VandenBerg II Court held that because the affidavit of merit was not filed within the
statute of limitations period, the case was time-barred. Here, because the affidavit of merit was
filed outside the limitations period—and outside the 91-day extension required under MCL
600.2912d(3)—the outcome of this case is controlled by VandenBerg II. The trial court did not,
therefore, err in dismissing the complaint on statute of limitations grounds.
Wade next asserts that defendants’ lawyer stated on the record that the affidavit of merit
was filed on May 24, 2013. Wade argues that the on-the-record statement constitutes a binding
admission. “[A] statement made by a party or his counsel, in the course of trial, is considered a
binding judicial admission if it is a distinct, formal, solemn admission made for the express
purpose of, inter alia, dispensing with the formal proof of some fact at trial.” Ortega v
Lenderink, 382 Mich. 218, 222-223; 169 NW2d 470 (1969). See also Zantop Int’l Airlines, Inc v
Eastern Airlines, 200 Mich. App. 344, 364; 503 NW2d 915 (1993) (noting that arguments of
counsel are neither evidence nor stipulations of fact). Based on our review, the statements by
defendants’ lawyer—in the lower court, in this Court, and before our Supreme Court—were not
distinct, formal, and solemn admissions made for the express purpose of dispensing with formal
proof at trial. Rather, the statements were made informally in connection with a wholly distinct
argument. In particular, when making the earlier statements, it was not the timely filing of the
affidavit of merit that was important, rather the pertinent fact that the lawyer was attempting to
convey was that the affidavit of merit had been filed before Wade received all the medical
records, so there was no prejudice from defendants’ failure to provide the requested medical
records. Accordingly, we conclude the statements by defendants’ lawyer during the earlier
proceedings do not constitute a binding judicial admission.
Wade next contends that equitable tolling should apply under the circumstances of this
case. In support, he directs us to Ward v Rooney-Gandy, 265 Mich. App. 515; 696 NW2d 64,
rev’d 474 Mich. 917 (2005). In that case, this Court held:
“The time requirements in lawsuits between private litigants are
customarily subject to equitable tolling if such tolling is necessary to prevent
unfairness to a diligent plaintiff.” 51 Am Jur 2d, Limitation of Actions, § 174, p
563. “In order to serve the ends of justice where technical forfeitures would
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unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be
applied to toll the running of the statute of limitations, provided it is in
conjunction with the legislative scheme.” 54 CJS, Limitations of Actions, § 86, p
122. [Ward, 265 Mich. App. at 517.]
As explained in Ward:
Equitable tolling has been applied where “the plaintiff actively pursued his
or her judicial remedies by filing a defective pleading during the statutory period
or the claimant has been induced or tricked by the defendant’s misconduct into
allowing the filing deadline to pass.” Am Jur 2d, supra at 563. While equitable
tolling applies principally to situations in which a defendant actively misleads a
plaintiff about the cause of action or in which the plaintiff is prevented in some
extraordinary way from asserting his rights, the doctrine does not require
wrongful conduct by a defendant. Id. at 564. An element of equitable tolling is
that a plaintiff must exercise reasonable diligence in investigating and bringing
his claim. Id. at § 175, p 564. In Irwin v Dep’t of Veterans Affairs, 498 U.S. 89,
96; 111 S. Ct. 453; 112 L. Ed. 2d 435 (1990), the United States Supreme Court
noted that it had “allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading during the
statutory period[.]” In support, the Supreme Court cited, in part, Burnett v New
York Central R Co, 380 U.S. 424; 85 S. Ct. 1050; 13 L. Ed. 2d 941 (1965), in which
the plaintiff filed a timely complaint, but in the wrong court. Irwin, supra at 96 n.
3. [Ward, 265 Mich. App. at 519-250.]
The Ward Court applied equitable tolling to save a plaintiff’s medical malpractice case after the
plaintiff inadvertently filed the wrong affidavit of merit with the complaint and subsequently
failed to file the proper affidavit of merit until after the limitations period expired. Id. at 516-
517, 525. However, this Court’s decision in Ward was reversed by our Supreme Court for the
reasons stated in Judge O’CONNELL’S dissenting opinion in Ward. 474 Mich. at 917. As such, it
is not binding. Moreover, in Judge O’CONNELL’S dissent in Ward—which was the basis for the
Supreme Court’s order reversing the majority opinion in Ward—he explained that under present
caselaw, a “grossly nonconforming” affidavit of merit filed under MCL 600.2912d(1) was
insufficient to toll the statute of limitations “any more than a complaint that is unaccompanied by
any affidavit” could toll the statute of limitations. Ward, 265 Mich. App. at 527 (O’CONNELL, J.,
dissenting). He further concluded that equitable tolling could not save a claim where the failure
to file a conforming affidavit of merit was a mere negligent failure rather than the product of
understandable confusion about what was required under the statute. Id. at 528-529. Similarly,
in this case, equitable tolling is not applicable because the failure to file the affidavit of merit in a
timely fashion is the product of negligent failure—i.e., Wade’s lawyer’s failure to ensure that the
affidavit of merit was actually filed with the trial court within the applicable time frame—rather
than any understandable confusion about the law.
Wades also suggests that this Court should revisit Young v Sellers, 254 Mich. App. 447;
657 NW2d 555 (2002). The Young Court urged our Supreme Court to revisit or distinguish
Scarsella “so that clearly inadvertent errors no longer have such a harsh result,” but the Court
recognized that it was nevertheless constrained to follow Scarsella. Id. at 454-453. Therefore,
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Young stands for the proposition that if a plaintiff fails to file his or her affidavit of merit with the
limitations period, the statute of limitations will bar his or her claim even if the complaint was
filed within the limitations period. Given that, like the Young panel, this Court is bound by
Scarsella, we cannot grant relief on the basis of Young.
Finally, Wade argues that MCL 600.2301 permits the trial court to “ignore reality at
times.” The statute provides that a trial court may “amend any process, pleading or proceeding .
. . in form or substance, for the furtherance of justice . . . .” MCL 600.2301. He contends that
the trial court ought to have used that power to amend the filing date stamped on the front page
of the affidavit of merit. Amending the date of the affidavit of merit is only necessary in order to
prevent Wade’s claim from being dismissed as time-barred by the statute of limitations. MCL
600.2301, however, may not be used to save a case from dismissal when the statute of limitations
bars it. See generally Tyra v Organ Procurement Agency of Mich, 498 Mich. 68, 91-92; 869
NW2d 213 (2015).
III. ISSUES RAISE IN REPLY BRIEF
In his reply brief, Wade raises two additional arguments for why we should reverse the
trial court’s decision. First, he argues that because this Court’s earlier opinion states that his
affidavit of merit was timely filed, the law-of-the-case doctrine applies and the trial court is
bound by this Court’s conclusion that it was timely filed. Second, he also asserts that under
MCR 2.112(L)(2), defendants’ challenge to the timeliness of the affidavit of merit is untimely.
However, reply briefs may contain only rebuttal argument, and raising an issue for the first time
in a reply brief is not sufficient to present the issue for appeal. MCR 7.212(G). See also Check
Reporting Srv, Inc v Mich Nat’l Bank-Lansing, 191 Mich. App. 614, 628; 478 NW2d 893 (1991).
Accordingly, the arguments about the law of the case and MCR 2.112(L)(2) are not properly
presented for appeal, and we decline Wade’s invitation to address them further.2
2
Moreover, even if the arguments had been raised in Wade’s brief on appeal as opposed to his
reply brief, it would still be improper to consider them. “Michigan generally follows the ‘raise
or waive’ rule of appellate review.” Walters v Nadell, 481 Mich. 377, 587; 751 NW2d 431
(2008).
Under our jurisprudence, a litigant must preserve an issue for appellate review by
raising it in the trial court. Although this Court has inherent power to review an
issue not raised in the trial court to prevent a miscarriage of justice, generally a
failure to timely raise an issue waives review of that issue on appeal.
The principal rationale for the rule is based in the nature of the adversarial
process and judicial efficiency. By limiting appellate review to those issues
raised and argued in the trial court, and holding all other issues waived, appellate
courts require litigants to raise and frame their arguments at a time when their
opponents may respond to them factually. This practice also avoids the untenable
result of permitting an unsuccessful litigant to prevail by avoiding its tactical
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Affirmed. Defendants, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra
decisions that proved unsuccessful. Generally, a party may not remain silent in
the trial court, only to prevail on an issue that was not called to the trial court’s
attention. Trial courts are not the research assistants of the litigants; the parties
have a duty to fully present their legal arguments to the court for its resolution of
their dispute. [Id. at 387-388 (citations and quotation marks omitted).]
Accordingly, as neither issue was raised before the trial court, the issues were waived and should
not now be addressed on appeal.
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