P Dean Compagner v. Angela Burch Pa-C ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DEAN COMPAGNER and LORIE COMPAGNER, FOR PUBLICATION
June 1, 2023
Plaintiffs-Appellees,
v No. 359699
Ottawa Circuit Court
ANGELA BURCH, PA-C, TIMOTHY LC No. 21-006524-NH
RUTKOWSKI, M.D., JENNIFER ANDERSON,
PA-C, LH PARTNERS SUB, doing business as
LAKESHORE HEALTH PARTNERS, and JOEL
VELDHOUSE, M.D.,
Defendants,
and
EDWARD MAAS, M.D., and ADVANCED
RADIOLOGY SERVICES PC,
Defendants-Appellants,
and
HOLLAND COMMUNITY HOSPITAL, doing
business as HOLLAND HOSPITAL,
Defendant-Appellee.
Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.
K. F. KELLY, P.J. (concurring in part and dissenting in part).
While I agree with the majority’s holding that Carter v DNT Mgt Co, ___ Mich App ___;
___ NW2d ___ (2023) (Docket No. 360772), controls the outcome of this case, and therefore
concur in the majority’s decision to affirm the trial court’s order denying defendants’ motion for
summary disposition, I disagree with the majority’s conclusion that the Michigan Supreme Court’s
Administrative Order (“AO”) No. 2020-3, 505 Mich cxxvii (2020) (“AO 2020-3”), was an
unconstitutional use of legislative power. Therefore, I respectfully dissent from the majority’s
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conclusion that AO 2020-3 was unconstitutional or that a conflict should be called with Carter
regarding the constitutional validity of AO 2020-3.
I. BACKGROUND
The global outbreak of the coronavirus (“COVID-19”) was “one of the most threatening
public-health crises of modern times.”1 In re Certified Questions from the United States Dist
Court, Western Dist of Mich, Southern Div, 506 Mich 332, 337; 958 NW2d 1 (2020). In response
to the pandemic, on March 10, 2023, Governor Gretchen Whitmer issued Executive Order
No. 2020-04, which declared a state of emergency within Michigan. Facing these directives, the
Michigan Supreme Court subsequently issued AO 2020-3 on March 23, 2020, stating:
In light of the continuing COVID-19 pandemic and to ensure continued
access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate
case types, including but not limited to the deadline for the initial filing of a
pleading under MCR 2.110 or a motion raising a defense or an objection to an initial
pleading under MCR 2.116, and any statutory prerequisites to the filing of such a
pleading or motion, any day that falls during the state of emergency declared by the
Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines pertaining to case initiation
and the filing of initial responsive pleadings in civil and probate matters during the
state of emergency declared by the Governor related to COVID-19. Nothing in this
order precludes a court from ordering an expedited response to a complaint or
motion in order to hear and resolve an emergency matter requiring immediate
attention. We continue to encourage courts to conduct hearings remotely using
two-way interactive video technology or other remote participation tools whenever
possible.
This order in no way prohibits or restricts a litigant from commencing a
proceeding whenever the litigant chooses. Courts must have a system in place to
allow filings without face-to-face contact to ensure that routine matters, such as
filing of estates in probate court and appointment of a personal representative in a
decedent’s estate, may occur without unnecessary delay and be disposed via
electronic or other means.[2] [Emphasis added.]
1
In Michigan alone, more than 3 million people have contracted the virus, resulting in over 40,000
deaths. Michigan Department of Health and Human Services, Michigan Coronavirus Data
(last accessed May 17, 2023).
2
As noted by the majority, AO 2020-3 was subsequently amended by the Michigan Supreme
Court, in which the last paragraph was amended to state:
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The Supreme Court’s decision to issue AO 2020-3 was plainly designed to limit, to the
greatest extent possible, face-to-face contact between people within the courts during the outbreak
while still ensuring litigants had access to the courts and judicial system. As we now know,
COVID-19 is transmitted most efficiently when individuals come into close contact with each
other. See Centers for Disease Control and Prevention, About COVID-19
(last accessed
May 17, 2023) (“COVID-19 spreads when an infected person breathes out droplets and very small
particles that contain the virus.”). Moreover, “only 24 percent [of surveyed courts] had a
documented emergency plan or continuity of operations plan in place prior to the pandemic.” State
Court Administrative Office, Lessons Learned Committee, Michigan Trial Courts: Lessons
Learned from the Pandemic of 2020-2021
(last
accessed May 17, 2023), p 4. Faced with these unprecedented challenges and questions, each court
had to consider issues
such as how long the shutdown would last; how long hearings and trials should be
adjourned; how the court should handle deadlines previously set in a proceeding
but expiring during the shutdown; whether statutory filing deadlines would be
extended; and whether court efforts to substantially comply with various mandated
procedures under statute or Michigan Court Rules would be considered acceptable
to SCAO and the Court as protecting procedural rights of parties during the shut-
down. [Id. at 10.]
It was against this backdrop of confusion and lack of preparation that AO 2020-3 was issued.
AO 2020-3 was effective for 102 days. On June 12, 2020, the Michigan Supreme Court
rescinded AO 2020-3, effective June 20, 2020, stating in AO 2020-18:
In Administrative Order No. 2020-3, the Supreme Court issued an order
excluding any days that fall during the State of Emergency declared by the
Governor related to COVID-19 for purposes of determining the deadline applicable
to the commencement of all civil and probate case types under MCR 1.108(1).
Effective Saturday, June 20, 2020, that administrative order is rescinded, and the
computation of time for those filings shall resume. For time periods that started
before Administrative Order No. 2020-3 took effect, the filers shall have the same
number of days to submit their filings on June 20, 2020, as they had when the
This order in no way prohibits or restricts a litigant from commencing a
proceeding whenever the litigant chooses, nor does it suspend or toll any time
period that must elapse before the commencement of an action or proceeding.
Courts must have a system in place to allow filings without face-to-face contact to
ensure that routine matters, such as filing of estates in probate court and
appointment of a personal representative in a decedent's estate, may occur without
unnecessary delay and be disposed via electronic or other means. [Amended AO-
2020-3, 505 Mich cxliv, cxlv (emphasis added).]
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exclusion went into effect on March 23, 2020. For filings with time periods that
did not begin to run because of the exclusion period, the filers shall have the full
periods for filing beginning on June 20, 2020. [Emphasis added.]
Turning to the case at bar, plaintiffs’ cause of action for medical malpractice accrued when
the review of plaintiff Dean Compagner’s angiogram occurred on November 3, 2014. But for AO
2020-3, the claim would have expired on November 3, 2020, under the statute of repose. See MCL
600.5838a(2) (stating that a medical malpractice claim “shall not be commenced later than 6 years
after the date of the act or omission that is the basis for the claim”). Plaintiffs, however, did not
serve defendants with their notice of intent to sue until December 4, 2020. Thus, absent AO 2020-
3, plaintiffs’ claim would be barred under MCL 600.5838a(2).
For its part, the trial court disagreed with defendants’ arguments that plaintiffs’ claim
extinguished under the statute of repose. Accordingly, the trial court denied defendants’ motion
for summary disposition under MCR 2.116(C)(7), as well as defendants’ motion for
reconsideration, and this appeal followed.
II. ANALYSIS
The majority concludes that Carter incorrectly held that AO 2020-3 was constitutional.
According to the majority, “[b]ut for Carter, we would hold that our Supreme Court did not have
the constitutional authority to issue AO 2020-3 and AO 2020-18 and that plaintiffs’ complaint was
therefore untimely filed (after the expiration of the applicable statute of repose) . . . .” This is so,
the majority posits, because enactments of laws such as statutes of limitations and statutes of repose
“fall squarely within the exclusive ambit of the Legislature.” The infirmity with Carter, according
to the majority, was the Carter Court’s conclusion that AO 2020-3 was not a statute of limitations
but rather was a modification to the method of counting days under MCR 1.108. See Carter, slip
op at 6.
In Carter, the Court made the unremarkable observation that while the Michigan Supreme
Court is constitutionally permitted to “establish, modify, amend, and simplify the practice and
procedure in all courts of this state,” the Supreme Court may not “issue orders or enact court rules
that establish, abrogate, or modify the substantive law.” Id. at 5 (quotation marks and citations
omitted). The issue, therefore, for the Court in Carter was whether AO 2020-3 was a modification
or amendment to the state courts’ practice and procedure or whether it was an abrogation or
modification to substantive law. Concluding that AO 2020-3 fell within the former category, the
Court stated:
By its own terms, AO 2020-3 was modifying the computation of days under
MCR 1.108 for purposes of determining filing deadlines, which is plainly a
procedural matter. Further, even the normal application of MCR 1.108(1) may
result in more time than permitted by the statute of limitations. That is, if the last
day of the limitations period is a day on which the court is closed, the period runs
until the next day that the court is open. See MCR 1.108(1). The law of counting
time favors this approach, i.e., granting more rather than less than [sic] time to file
than permitted by statute, to ensure that the parties receive the entire amount of time
for filing that they are entitled to. See Haksluoto v Mt Clemens Regional Med Ctr,
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500 Mich 304, 314-320; 901 NW2d 577 (2017). That is precisely what the
Supreme Court was trying to accomplish with AO 2020-3, which was issued when
there were court closings because of the COVID-19 pandemic. [Id. at 6.]
I agree with this holding in Carter.3 Just as this Court proceeds with the well-established
presumption that acts of the Legislature are constitutional, see Keenan v Dawson, 275 Mich App
671, 680; 739 NW2d 681 (2007), the same must be said for the Michigan Supreme Court’s orders.
The explicit language of AO 2020-3 makes it clear that the order modified the computation of days
under MCR 1.108(1). I therefore begin with the presumption that AO 2020-3 means what it says
and was, therefore, a constitutional exercise of its power to “establish, modify, amend, and simplify
the practice and procedure in all courts of this state.” Const 1963, art 6, § 5.
This presumption cannot, of course, end the inquiry. While the practical effect of AO
2020-3, at its farthest limits, gave litigants an additional 102 days to file their claims, we only
know this with the benefit of hindsight. This raises the fundamental issue with the majority’s
reasoning: it is backward-looking, examining the effect of AO 2020-3 from the benefit of two
years of experience and hindsight. However, at the time AO 2020-3 was issued in March 2020,
no one knew the breadth of the impact that COVID-19 would have on our court system. Many
presumed the pandemic would run its course in a matter of days or weeks. Moreover, and perhaps
more importantly, the courts across the state were simply unprepared to immediately facilitate
faceless, electronic filings or remote hearings. While the majority observes that Ottawa County
was a leader in the move toward electronic filings, the Michigan Supreme Court was, presumably,
3
While I agree with Carter’s conclusion that AO 2020-3 was a proper exercise of the Michigan
Supreme Court’s authority to establish the procedure and practice in the state’s courts, which is
dispositive of the issue, I do not join Carter’s pronouncement that “it is questionable whether this
Court has the power to declare unconstitutional administrative orders of the Supreme Court.”
Carter, slip op at 6. To that end, I agree with the majority’s position “that it is our duty to decide
controlling legal questions that arise in appeals over which we have jurisdiction, including in this
case the constitutional validity of the AOs.”
I also agree with the majority’s footnote criticizing the Carter Court’s reliance on
superintending control as “misplaced.” Superintending control is “the proper method to challenge
the general practices of an inferior court.” In re Credit Acceptance Corp, 273 Mich App 594, 598;
733 NW2d 65 (2007). “For superintending control to lie, the plaintiff must establish that the
defendant has failed to perform a clear legal duty and that plaintiff is otherwise without an adequate
legal remedy.” Id. While COVID-19 presented unprecedented challenges for the lower courts,
there is no evidence the courts failed to perform their duties, thus giving rise to superintending
control.
Lastly, like the majority, I take issue with the Carter court’s holding that “all litigants
whose limitations periods had not expired prior to the adoption of AO 2020-3 were entitled to the
exclusion of days under AO 2020-3.” Carter, ___ Mich App at ___; slip op at 4 (emphasis added).
That is to say, I do not interpret AO 2020-3 as excluding days from limitations periods, but rather
I interpret the order as suspending those days such that once the order expired, litigants whose
deadlines would have otherwise expired could still file their pleadings the following day.
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concerned not only with Ottawa County, but every county and court system within the state. It is
also noteworthy that the majority carefully avoids making the sweeping assertion that every court
was open to the public during the state of emergency, merely stating that “courts largely remained
open during the state of emergency” and that trial courts “generally continued to accept court
filings.” (Emphasis added.) In other words, what of the courts that were not open, or that, for
some period of time, could not accept court filings? I must presume that the Supreme Court, when
issuing AO 2020-3, was considering those corner cases when crafting the order.
Contrary to the majority, I would conclude that AO 2020-3 was a proper exercise of the
Michigan Supreme Court’s constitutional power. The ability for litigants to access the courts was
at issue, and the Court had a responsibility to ensure access. But even if I were to agree that AO
2020-3 was unconstitutional—it was not—I also disagree with the majority’s remedy should
Carter be overruled. According to the majority, “but for Carter, we would reverse and remand
for entry of summary disposition in favor of defendants.” Doing so would act as a great injustice
to the lawyers and litigants around the state legitimately acting in reliance on orders issued by the
Supreme Court in a time of chaos and uncertainty. In other words, under the majority’s reasoning,
AO 2020-3 should have been identified by every lawyer as unconstitutional and, as a result, would
be obligated to not act in reliance on it. I cannot countenance a decision that would, in effect, say
lawyers were perhaps constitutionally ineffective by relying on orders issued by the highest court
in this state, whose responsibility it is to administer the state’s court system.
Moreover, Carter is fully briefed before the Michigan Supreme Court on a pending
application for leave to appeal. The same is true for Armijo v Bronson Methodist Hosp, ___ Mich
App ___; ___ NW2d ___ (2023) (Docket Nos. 358728, 358729). Thus, the issues raised by the
majority are ripe for review by that Court and, if it wishes to declare AO 2020-3 unconstitutional,
it is primed to do so. Accordingly, for this Court to declare a conflict with Carter at this juncture
is unnecessary and would amount to little more than an advisory opinion on the matter.
Therefore, I concur with the majority’s decision to affirm the order of the trial court
denying defendant’s motion for summary disposition, but dissent from the conclusion that AO
2020-3 was unconstitutional or that a conflict panel should be called.
/s/ Kirsten Frank Kelly
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