Adela Toman v. Carrie McDaniels Pta ( 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
ADELA TOMAN, FOR PUBLICATION
November 21, 2023
Plaintiff-Appellant, 9:10 a.m.
v No. 361655
Ingham Circuit Court
CARRIE MCDANIELS, PTA, DANIELLE LC No. 21-000600-NH
SCHUELER, COTA-L, and SPARROW
HOSPITAL,
Defendants-Appellees.
Before: RIORDAN, P.J., and BORRELLO and BOONSTRA, JJ.
BOONSTRA, J.
In this medical-malpractice action, plaintiff appeals by right the trial court’s order granting
summary disposition in favor of defendants under MCR 2.116(C)(7) (statute of limitations). The
trial court determined that plaintiff’s complaint was not timely filed. Plaintiff argues that, based
on certain administrative orders (AOs) of our Supreme Court, namely AO 2020-3, 505 Mich cxxvii(2020) and AO 2020-18, 505 Mich clviii (2020), her complaint was timely filed, because those
AOs tolled the statutory limitations period for a period of 102 days between March 10, 2020 and
June 20, 2020, which was the exclusion period specified by the AOs. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
For purposes of this appeal, the facts are not in dispute; our recitation of them is taken from
plaintiff’s complaint. Plaintiff, who had an extensive history of prior medical issues, “was
admitted to Sparrow Hospital on December 3, 2018, with shortness of breath and was subsequently
diagnosed with acute hypoxic respiratory failure and acute coronary syndrome.” On December 11,
2018, plaintiff was approved for occupational therapy and physical therapy. On December 12,
2018, which was the date of the alleged medical malpractice, plaintiff was being walked back to
her bed when her “knees suddenly buckled,” which led to a “comminuted fracture of her left lower
fibula.” Because of this fracture and a previous amputation, plaintiff was no longer suitable for
rehabilitation, and she allegedly “suffered a lengthy recovery from her fracture and remains with
pain and decreased mobility at this time.” On December 11, 2020 (one day before the originally-
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scheduled expiration of the statute of limitations),1 plaintiff served her Notice of Intent (NOI) on
defendants, which tolled the statutory limitations period until June 12, 2021 (the statute of
limitations being tolled for 182 days after the service of the NOI on December 11, 2020, plus one
day remaining in the original limitations period).2 Plaintiff filed her complaint on September 21,
2021.
In the interim, and in response to the COVID-19 pandemic, our Supreme Court entered
AO 2020-3 on March 23, 2020.3 AO 2020-3 originally provided:
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
1
Because December 12, 2020 was a Saturday, the statute of limitations actually would have
expired on Monday, December 14, 2020. MCR 1.108(1).
2
A plaintiff in a medical malpractice action is required to provide the defendants with written
notice of intent to file a claim not less than 182 days before commencing the action.
MCL 600.2912b(1). “At the time notice is given in compliance with the applicable notice period
under section 2912b, if during that period a claim would be barred by the statute of limitations or
repose,” then “the statute is tolled not longer than the number of days equal to the number of days
remaining in the applicable notice period after the date notice is given.” MCL 600.5856(c).
3
Although issued on March 23, 2020, the parties agree that the exclusion period under AO 2020-
3 began on March 10, 2020 because the Governor’s Executive Order No. 2020-4 declared that the
state of emergency began on that date.
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decedent’s estate, may occur without unnecessary delay and be disposed via
electronic or other means.
On May 1, 2020, our Supreme Court entered Amended AO 2020-3, 505 Mich cxliv (2020), which
changed the fourth paragraph by adding the following underlined language: “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.” Finally, on June 12, 2020, the Court entered AO 2020-18, which provided:
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
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.
Defendants filed their motion for summary disposition under MCR 2.116(C)(7), arguing
that plaintiff’s complaint was untimely because it fell outside the two-year statutory limitations
period. Pertinent to this appeal, defendants contended that AO 2020-3 did not toll the statutory
period of limitations for 102 days between March 10, 2020 and June 20, 2020, because the AO
applied only to statutory limitations periods that would expire during the 102-day exclusion period,
not to statutory periods that would expire after the exclusion period. Alternatively, defendants
contended that our Supreme Court lacked authority to modify the statute of limitations for
malpractice via the AOs. Plaintiff countered that AO 2020-3 applied regardless of whether the
statutory period expired during or after the emergency period and that our Supreme Court had
authority under MCR 1.108 to determine by what method to calculate the two-year limitations
period for medical-malpractice actions. The trial court agreed with defendants. This appeal
followed.
II. ANALYSIS
A. STANDARD OF REVIEW
We review “de novo a trial court’s decision on a motion for summary disposition, as well
as questions of statutory interpretation and the construction and application of court rules.”
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion is properly
granted under MCR 2.116(C)(7) when “[e]ntry of judgment, dismissal of the action, or other relief
is appropriate because of . . . statute of limitations . . . .”
In reviewing a motion under MCR 2.116(C)(7), this Court accepts as true the
plaintiff’s well-pleaded allegations, construing them in the plaintiff’s favor. We
must consider affidavits, pleadings, depositions, admissions, and documentary
evidence filed or submitted by the parties when determining whether a genuine
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issue of material fact exists. [Hanley v Mazda Motor Corp, 239 Mich App 596,
600; 609 NW2d 203 (2000) (citation omitted).]
When the facts are undisputed, whether a cause of action is barred by the applicable statute
of limitations is a question of law that this Court reviews de novo. See Trentadue v Buckler Lawn
Sprinkler, 479 Mich 378, 386; 738 NW2d 664 (2007); see also Carter v DTN Mgt Co, ___ Mich
App ___, ___; ___ NW2d ___ (2023) (Docket 360772), lv gtd 991 NW2d 586 (2023); slip op at 3
n 1. We also review de novo the interpretation of statutes and court rules, Franks v Franks, 330
Mich App 69, 86; 944 NW2d 388 (2019), as well as the interpretation of administrative and
executive orders, see Aguirre v Dep’t of Corrections, 307 Mich App 315, 320; 859 NW2d 267(2014); see also Linstrom v Trinity Health-Mich, ___ Mich App ___, ___; ___ NW2d ___ (2023)
(Docket No. 358487); slip op at 5.
B. STATUTE OF LIMITATIONS
Plaintiff argues that her complaint was timely filed because AO 2020-3 excluded the 102-
day period between March 10, 2020 and June 20, 2020 from the calculation of the two-year
statutory limitations period. We disagree.
The same principles governing the interpretation of court rules apply to interpreting AOs.
Hubbard v Stier, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 357791); slip op at
4. “[W]e read an administrative order as a whole, reading the individual words and phrases in
context, giving effect to every word and phrase, and avoiding an interpretation that would render
any part surplusage or nugatory.” Id. at __; slip op at 4-5. We will enforce unambiguous language
as it is written without speculation about our Supreme Court’s intent. Id. at __; slip op at 5.
Under the Revised Judicature Act of 1961, MCL 600.101 et seq., the statutory limitations
period for medical-malpractice claims is two years. MCL 600.5805(8). MCL 600.2912b(1)
requires that, not less than 182 days before a malpractice complaint is filed, a plaintiff must serve
an NOI on the defendants. The NOI tolls the two-year statutory limitations period “if during that
period a claim would be barred by the statute of limitations or repose . . . .” MCL 600.5856(c).
Moreover, “the statute is tolled not longer than the number of days equal to the number of days
remaining in the applicable notice period after the date notice is given.” Id.As applied to this case, this means that plaintiff’s statute of limitations was initially
scheduled to expire on December 12, 2020—a date that fell nearly six months after the end of the
exclusion period—and then was extended, by virtue of plaintiff’s December 11, 2020 NOI, until
June 12, 2021. As noted, plaintiff filed her complaint on September 21, 2021.
The most relevant language contained within AO 2020-3 is as follows:
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
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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).[4]
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.
The parties’ primary dispute is whether AO 2020-3 excluded the 102-day emergency period for
statutory limitations periods that expired after the emergency period ended, as defendants argue
and the trial court held.
This Court has previously considered that issue, and has reached inconsistent conclusions.
A review of the pertinent caselaw is therefore in order. Since that review was previously conducted
in Compagner v Angela Burch, PA-C, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket
No. 359699), we restate Compagner’s discussion in that regard:
As this Court noted when requesting supplemental briefing, several recent
cases have addressed issues related to the computation of time and tolling of
limitations or other time periods related to AO 2020-3 and 2020-18. These cases
include Wenkel v Farm Bureau General Ins Co of Mich, ___ Mich App ___; ___
NW2d ___ (2022) (Docket No. 358526); Armijo v Bronson Methodist Hospital,
___ Mich App ___; ___ NW2d ___ (2023) (Docket Nos. 358728, 358729); Carter
[,___ Mich App at ___]; Linstrom v Trinity Health-Michigan, ___ Mich App ___;
___ NW2d ___ (2023) (Docket No. 358487); and Hubbard v Stier, ___ Mich App
___; ___ NW2d ___ (2023) (Docket No. 357791). All of these cases except Wenkel
have applications for leave to appeal pending before the Michigan Supreme Court;
Wenkel’s application was recently denied. See Wenkel v Farm Bureau General Ins
Co of Mich, ___ Mich ___; 988 NW2d 482 (2023).[5]
4
MCR 1.108(1) provides:
In computing a period of time prescribed or allowed by these rules, by court
order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of
time begins to run is not included. The last day of the period is included, unless it
is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant
to court order; in that event the period runs until the end of the next day that is not
a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to
court order.
5
Since this Court issued its decision on Compagner, our Supreme Court has granted an application
for leave to appeal in Carter, see Carter v DTN Mgt Co, 991 NW2d 586 (2023), has directed the
Clerk to schedule oral argument on an application for leave to appeal in Armijo, see Armijo v
Bronson Methodist Hosp, 991 NW2d 593 (2023), has held in abeyance an application for leave to
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In Wenkel, a unanimous panel of this Court held, in an action to recover
personal injury protection (PIP) benefits under an automobile insurance policy, that
the Supreme Court’s administrative orders did not toll the one-year-back rule
embodied in MCL 500.3145(2). Wenkel, ___ Mich App at ___; slip op at 4-5. The
Court noted that the one-year-back rule was a “damages-limiting provision,” not a
“deadline[] applicable to the commencement” of a civil action. Id. at __; slip op at
4 (citations omitted). It further stated:
We interpret AO 2020-3 as tolling the statute of limitations for the
commencement of actions and a concomitant tolling of the filing of
responsive pleadings during the state of emergency. [Id. at __; slip op at 4.]
Shortly after we issued Wenkel, another panel of this Court issued Armijo,
in which we held that the Supreme Court’s administrative orders did not toll the
182-day NOI period in a medical malpractice action. Armijo, ___ Mich App at
___; slip op at 7. We observed that Amended AO 2020-3 clarified that AO 2020-
3 did not “suspend or toll any time period that must elapse before the
commencement of an action or proceeding,” and that an NOI period is such a time
period. Id. at __; slip op at 6, quoting Amended AO 2020-3. The Armijo Court
noted that Amended AO 2020-3 reiterated that it “. . . intended to extend all
deadlines pertaining to case initiation . . . during the state of emergency . . . .” Id.,quoting Amended AO 2020-3. The Court further held that “[b]ecause [Amended
AO 2020-3] clarified that the notice period continued to run and because the
administrative orders by their language only applied to deadlines which took place
during the state of the emergency,” id. at __; slip op at 7, the plaintiff’s claim was
time-barred under the facts of that case. Judge RIORDAN fully concurred with the
lead opinion in Armijo, but wrote separately to explain why “the constitutionality
of [AO 2020-3 and AO 2020-18] warrants careful consideration by this Court in a
future case. Armijo, ___ Mich App at ___; slip op at 2 (opinion by RIORDAN, J.,
concurring).
A week after our opinion in Armijo was issued, another panel of this Court
decided Carter, a premises liability case. Notwithstanding the above-quoted
language of Wenkel and Armijo to the effect that AO 2020-3 only applied to
deadlines for filing case-initiation and responsive pleadings “during the state of
emergency,” the Court in Carter held the opposite, i.e., that the AO’s “more broadly
excluded any day within the state of emergency, ‘for purposes of determining the
appeal in Linstrom, pending its consideration of Armijo, see Linstrom v Trinity Health-Michigan,
991 NW2d 594 (2023), and has held in abeyance an application for leave to appeal in Compagner,
pending its consideration of Armijo and Carter, see Compagner v Burch, ___ NW2d ___ (2023).
Although our dissenting colleague characterizes us as “refus[ing] to wait for a final ruling from
our Supreme Court,” we believe that the Supreme Court would benefit from the analysis set forth
in this opinion, and we in any event have an independent obligation to decide the issues before us.
Only in today’s upside-down world could anyone characterize our fulfillment of our duties as
somehow “defy[ing]” or “not respecting” our court rules.
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deadline applicable to the commencement of all civil and probate case types under
MCR 1.108(1).’ ” Carter, ___ Mich App at ___; slip op at 4, quoting AO 2020-18.
Carter further held that the AOs were constitutional, thus deciding the issue that
was reserved for decision in Armijo. Id at __; slip op at 6.
The same panel that decided Carter then decided Linstrom a week later. In
Linstrom, the Court applied Carter’s holding (that the AOs excluded all days within
the state of emergency even when a deadline occurred outside the exclusion period)
in the context of a medical malpractice action, and again opined that its conclusion
was consistent with Armijo. Linstrom, ___ Mich App at ___; slip op at 7-9. Most
recently, another panel of this Court decided Hubbard, in which the Court held,
consistent with Armijo and the clarifying language of Amended AO 2020-3, that
the AO’s did not toll an NOI waiting period. Hubbard, ___ Mich App at ___; slip
op at 6 (stating that “a mandatory NOI provision sets a clock ticking, not unlike a
kitchen timer, that must elapse before litigation may be commenced”).
[Compagner, ___ Mich App at ___, slip op at 7-8 (footnotes omitted).]
This Court then decided Compagner. With respect to this issue,6 this Court expressed its
frustration about the inconsistency in the caselaw as it had developed in this Court, stating:
The more difficult question relates to whether the AOs only apply to deadlines that
fall within the exclusion period. That difficulty arises in part because of the
muddied nature of the caselaw, with Wenkel and Armijo seemingly holding one
thing and Carter holding another. As noted, this Court in Wenkel and Armijo
interpreted the AOs as applying only to deadlines (for filing case-initiation or
responsive pleadings) “during the state of emergency.” Wenkel, ___ Mich App at
___; slip op at 4; Armijo, ___ Mich App at ___; slip op at 6-7. Nonetheless, the
Court in Carter held to the contrary, relying in part on the its interpretation of AO
2020-18 (which rescinded AO 2020-3):
AO 2020-18 establishes two categories of parties—one whose filings
periods began to run before AO 2020-3 took effect on March 23, 2020, and
one whose filing periods began to run on or after March 23, 2020. Plaintiff
falls in the first category, and she therefore has “the same number of days
to submit [her] filings on June 20, 2020, as [she] had when the exclusion
went into effect on March 23, 2020.” There is no language in AO 2020-18
limiting the first category to those whose filing deadline fell within the state
of emergency. The second category identified by the Supreme Court also
undermines defendant's interpretation of the administrative orders. That is,
the second category concerns those whose time period did not begin to run
because of AO 2020-3 and therefore could not have expired during the state
6
Compagner also declared a conflict with Carter with respect to the constitutional validity of the
AOs, concluding that they unconstitutionally intruded on the Legislature’s sole prerogative to
determine the substantive law of Michigan. We will discuss the constitutional issue in Part II(C)
of this opinion.
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of emergency. This demonstrates 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.]
We are troubled both by the arguably inconsistent manner in which the controlling,
published caselaw has developed and by the fact that AO 2020-18—which
rescinded AO 2020-3—employed language that appears to have facilitated an
interpretation of AO 2020-3 (by this Court in Carter) that is inconsistent with the
very language of AO 2020-3 itself (and with the earlier, published caselaw
interpreting it). Arguably, AO 2020-18 and its interpretation by this Court in Carter
effectively transformed an order—AO 2020-3—that by its terms indicated that it
was intended to apply to deadlines “during the state of emergency” into one that
would continue to apply to deadlines that fell well outside the state of emergency.
[Compagner, ___ Mich App at ___ (footnotes omitted); slip op at 10-11.]
Despite its frustration, the Court in Compagner noted that “we appear to be bound by
Carter on this issue,” and therefore opted, with seeming reluctance, to follow Carter on this issue.
Id. at __; slip op at 11. Compagner then proceeded to declare a conflict with Carter with respect
to the constitutional issue (which we will address later in this opinion). Id. at __; slip op at 21.
This Court in Compagner nonetheless suggested that the Court in Carter should have
followed the holding in Armijo and, if it disagreed, declared a conflict with Armijo under
MCR 7.215(J)(2):
The Court in Carter, while citing Wenkel, did not address the above-quoted
language from Wenkel, but did state with regard to Armijo, “[t]o the extent Armijo
indicated that the AOs applied only to limitations periods that expired during the
state of emergency, those statements are nonbinding dicta . . . .” Carter, ___ Mich
App at ___; slip op at 5. A credible argument could be made that the panel in
Carter should have followed Armijo and declared a conflict under MCR 7.215(J).
See Griswold Properties, LLC v Lexington Ins Co, 276 Mich App 551, 563; 741
NW2d 549 (2007) (opinion by special conflicts panel) (“[A]n issue that is
intentionally addressed and decided is not dictum if the issue is germane to the
controversy in the case, even if the issue was not necessarily decisive of the
controversy in the case.”); see also Carr v City of Lansing, 259 Mich App 376, 384;
674 NW2d 168 (2004) (“[W]hen a court of last resort intentionally takes up,
discusses and decides a question germane to, though not necessarily decisive of,
the controversy, such decision is not a dictum but is a judicial act of the court which
it will thereafter recognize as a binding decision.”) (internal quotation marks
omitted); People v Robar, 321 Mich App 106, 117; 910 NW2d 328 (2017) (same).
[Compagner, ___ Mich App at ___ n 17; slip op at 9]
In these unusual circumstances, we conclude that it is appropriate for us now to look at the
issue anew and, in that context, to assess the interplay of Armijo and Carter, as each of those
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decisions, albeit in conflict, is arguably binding on this Court.7 In doing so, our principal focus is
not on the substantive issue decided in Armijo and Carter (i.e., whether the AOs applied to
limitations periods that expired after the exclusion period), but rather on the procedural issue of
which decision— Armijo or Carter—controls.
In Armijo, the parties agreed that plaintiff’s claim for medical malpractice accrued on
March 6, 2018. Armijo, ___ Mich App at ___; slip op at 7. On February 19, 2020—16 days before
the expiration of the statute of limitations—the plaintiff served her NOI, thereby tolling the statute
of limitations for a period of 182 days from that NOI date. MCL 600.5856(c) (“At the time notice
is given in compliance with the applicable notice period under section 2912b, if during that period
a claim would be barred by the statute of limitations or repose,” then “the statute is tolled not
longer than the number of days equal to the number of days remaining in the applicable notice
period after the date notice is given.”). This effectively extended the statute of limitations until
September 4, 2020 (16 days past the expiration of the 182-day NOI period). See Haksluoto v Mt
Clemens Regional Med Center, 500 Mich 304, 323; 901 NW2d 577 (2017) (“The rule is that once
the notice period ends and the time for the plaintiff to bring a claim once again begins to run, it
will run for the number of whole days remaining in the limitations period when the NOI was filed,
plus one day to reflect the fractional day remaining when the NOI itself was filed.”). The plaintiff
filed her complaint on December 14, 2020. Armijo, ___ Mich App at ___; slip op at ___; slip op
at 4.
As Carter later noted, Armijo indeed held that AO 2020-3 did not toll an NOI period. Id.at __; slip op at 7. In analyzing that issue, however, the Court in Armijo necessarily went farther
than that. The Armijo Court noted that AO 2020-3, in both its initial and amended versions,
expressly described the intent of the AO as follows:
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. [AO 2020-3;
Amended AO 2020-3; Armijo, ___ Mich App at ___; slip op at 3 (emphasis added).]
After considering the effect of AO 2020-3, the Armijo Court then concluded:
Because Amended Administrative Order No. 2020-3, 505 Mich lxxiv(2020) clarified that the notice period continued to run and because the
administrative orders by their language only applied to deadlines which took place
during the state of emergency, August 19, 2020, was the earliest date on which
plaintiff could commence her medical malpractice action. Under
MCL 600.5856(c), because plaintiff served notice of her intent to file her medical
malpractice action, the two-year statutory limitations period specified under
MCL 600.5805(8) which would have elapsed during the notice period was tolled,
such that she had 16 days remaining of the statutory limitations period in which to
7
Because Armijo preceded Carter in time and arose in the context of assessing the impact of the
AOs on the statute of limitations applicable in a medical malpractice action, we will focus our
analysis on the interplay between Armijo and Carter, and see no need to additionally assess
Carter’s treatment (or lack thereof) of Wenkel.
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commence her malpractice action. That gave plaintiff until September 4, 2020, to
commence her malpractice action against defendants. The record indicates that
plaintiff filed her lawsuit on December 14, 2020, long after the expiration of the
statutory limitations period. Accordingly, her claims against defendants were time-
barred. The trial court, therefore, reversibly erred by not granting defendants
motions for summary disposition under MCR 2.116(C)(7). [Armijo, ___ Mich App
at ___; slip op at 7 (emphasis added).]
Armijo thus expressly held that AO 2020-3 “only applied to deadlines which took place
during the state of emergency.” Id. In later reaching the opposite conclusion (and without
declaring a conflict under MCR 7.215(J)), the Court in Carter dismissed Armijo in a footnote,
stating:
Our analysis is not in conflict with this Court's recent decision in Armijo v Bronson
Methodist Hosp., ___Mich App ___; ___ NW2d ___, 2023 WL 324450 (2023)
(Docket No. 358729). Armijo was a medical-malpractice case in which the plaintiff
argued that the administrative orders tolled the 182-day notice waiting period,
MCL 600.2912b, which in that case entirely encapsulated the state of emergency
period. This Court concluded that the AOs did not toll the notice of intent waiting
period, which was dispositive of that appeal. See id. at __; slip op. at 6-7. In
contrast, this case does not concern the notice waiting period for medical
malpractice cases and therefore Armijo is not controlling. To the extent Armijo
indicated that the AOs applied only to limitations periods that expired during the
state of emergency, those statements are nonbinding dicta because they were not
necessary to the resolution of that appeal. Griswold Props., L.L.C. v Lexington Ins.
Co., 276 Mich App 551, 557-558, 741 NW2d 549 (2007) (“It is a well-settled rule
that statements concerning a principle of law not essential to determination of the
case are obiter dictum and lack the force of an adjudication,” and are “not binding
on this Court.”). Indeed, because it was not necessary to the decision in that case,
the Armijo panel did not discuss the language in AO 2020-18 establishing that the
statutory limitations periods for all cases was tolled from March 10, 2020 until
June 20, 2020. [Carter, ___ Mich App at ___ n 3, slip op at 5.]
Because of the seeming conflict brought about by Carter’s out-of-hand dismissal of
Armijo, we must decide which decision is binding on us in this matter. We conclude that Carter’s
analysis of Armijo was faulty,8 that Armijo’s analysis of the NOI issue was not “dispositive of that
8
We note that the Court in Compagner was also critical of Carter for being selective in those
aspects of AO 2020-3 that it considered in its analysis:
We note that Carter also quoted what it deemed to be the “pertinent part” of AO
2020-3, i.e., the language that referred to “all deadlines” and to the exclusion of
“any day that falls during the state of emergency” from the computation of time for
purposes of MCR 1.108(1). Carter, ___ Mich App at ___. However, Carter did
not address the language of AO 2020-3 that stated that it was “intended to extend
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appeal,” Carter, ___ Mich App at ___ n 3, slip op at 5, and that Carter’s dismissal of Armijo as
“nonbinding dicta” was in error. The Armijo Court was indeed presented with the issue of whether
the AO’s tolled an NOI period, and concluded that they did not. But that was not the full extent
of Armijo’s holding. To the contrary, Armijo’s holding necessarily also encompassed the
additional conclusion that the AOs did not toll statutes of limitation that fell outside the exclusion
period of the AOs.
The panel in Carter appears to have believed otherwise, for the reason that the NOI waiting
period in Armijo “entirely encapsulated the state of emergency period.” Carter, ___ Mich App at
___, n 3; slip op at 5. But Carter’s conclusion simply does not follow. To the contrary, and even
though the entirety of the exclusion period fell within the NOI period (which was not tolled by the
AOs), the plaintiff in Armijo still faced an extended (by the NOI) statute of limitations that expired
on September 4, 2020. Consequently, her December 14, 2020 complaint was untimely unless AO
2020-3 tolled the statute of limitations itself. The issue of whether AO 2020-3 tolled the statute
of limitations was therefore squarely before the Court in Armijo, and we conclude that Armijo’s
conclusion that the AOs did not apply to statutes of limitation expiring after the exclusion period
of the AOs was integral to its analysis and holding. Carter’s dismissal of Armijo as “nonbinding
dicta” was plainly wrong.9
In extending Carter’s holding to the medical malpractice context, the same panel employed
an equally faulty analysis in Linstrom. Indeed, the errors in Carter were actually exacerbated in
Linstrom. The Court in Linstrom declared that its conclusion was “consistent with” Armijo
because the “computation of the statute of limitations in Armijo was not similarly impacted
because the original deadline was set to expire before the emergency period began.” Linstrom,
___ Mich App at ___; slip op at 9.10 This distinction, of course, makes no sense. Regardless of
when the statute of limitations was “originally” “set to expire,” the plaintiff’s service of an NOI in
Armijo extended the statute of limitations (under MCL 600.5856(c)) until a date well after the end
of the exclusion period under the AOs. Consequently, it was necessary for this Court in Armijo
not only to address the effect (if any) of the AOs on the NOI waiting period, but additionally to
all deadlines . . . during the state of emergency.” AO 2020-3 (emphasis added).
[Compagner, ___ Mich App at ___ n 19; slip op at 10-11.]
9
Moreover, “an issue that is intentionally addressed and decided is not dictum if the issue is
germane to the controversy in the case, even if the issue was not necessarily decisive of the
controversy in the case.” Griswold Properties, LLC v Lexington Ins Co, 276 Mich App 551, 563;
741 NW2d 549 (2007) (opinion by special conflicts panel). See also Carr v City of Lansing, 259
Mich App 376, 384; 674 NW2d 168 (2004) (“[W]hen a court of last resort intentionally takes up,
discusses and decides a question germane to, though not necessarily decisive of, the controversy,
such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as
a binding decision.”) (internal quotation marks omitted); People v Robar, 321 Mich App 106, 117;
910 NW2d 328 (2017) (same).
10
Linstrom also errantly said that “[t]he plaintiff’s two-year statute of limitations expired on March
6, 2020, before the state of emergency was declared,” yet it simultaneously recognized that the
statute of limitations was “already tolled” by plaintiff’s service of an NOI “on February 19, 2020,
with 16 days remaining on the limitations period.” Linstrom, ___ Mich App at ___; slip op at 8.
-11-
address the impact of the AOs on the statute of limitations. In doing so, Armijo expressly held that
the AOs did not apply when the statute of limitations expired after the exclusion period of the AOs.
The upshot of all of this, of course, is that Carter and Linstrom improperly failed to follow
Armijo, and apparently did so to reach a conclusion that they would not—and could not—have
reached had they properly analyzed Armijo—which decision was binding on the Court in both
Carter and Linstrom. See MCR 7.215(J) (“A panel of the Court of Appeals must follow the rule
of law established by a prior published decision of the Court of Appeals issued on or after
November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special
panel of the Court of Appeals as provided in this rule.”).
As we are confronted with two seemingly-binding yet conflicting precedents issued by this
Court, we as an intermediate appellate court are compelled to follow Armijo. As explained in The
Law of Judicial Precedent, with regard to an intermediate appellate court confronted with
inconsistent opinions among its own precedents:
With an intermediate appellate court, an earlier horizontal precedent nearly
always controls. This doctrine is based on the “general rule” that “one panel may
not overrule the decision of a prior panel.” The federal appellate courts in particular
apply this solution to resolve a conflict between different panels and hold that the
earlier opinion controls later panels and also the district courts in the circuit.
[Garner et al., The Law of Judicial Precedent (St Paul: Thomson/West, 2016), pp
303-304 (footnotes omitted).][11]
Indeed, according to the United States Court of Appeals for the Fourth Circuit, this rule is
applied by nearly every federal circuit court to have addressed the matter:
[W]e have made it clear that, as to conflicts between panel opinions, application of
the basic rule that one panel cannot overrule another requires a panel to follow the
earlier of the conflicting opinions. See Booth v. Maryland, 327 F.3d 377, 383 (4th
Cir.2003).
Most of the other circuits agree and follow the earlier of conflicting panel opinions.
See, e.g., Hiller v. Oklahoma ex rel. Used Motor Vehicle & Parts Comm’n, 327
F.3d 1247, 1251 (10th Cir.2003) (explaining that when panel opinions are in
conflict, “we are obligated to follow the earlier panel decision over the later one”);
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir.2003) (“When faced with
an intra-circuit split we must apply the earliest case rule, meaning when circuit
11
The four exceptions identified in The Law of Judicial Precedent to the general rule that the
earlier decision controls are as follows: (1) “the later panel determines that the decision was clearly
contrary to a then-standing vertical precedent,” (2) “an intervening vertical precedent effectively
overrules the earlier panel’s decision,” (3) “the court is applying a statute that has been amended
in the interim,” and (4) “(with a federal circuit court applying state law) the state courts have
expressly said they disagree with a previous panel decision and would have decided the matter
differently.” Id. at p 304. None of these exceptions would apply here.
-12-
authority is in conflict, a panel should look to the line of authority containing the
earliest case, because a decision of a prior panel cannot be overturned by a later
panel.” (internal quotation marks omitted)); Southwestern Bell Tel. Co. v. City of
El Paso, 243 F.3d 936, 940 (5th Cir.2001) (“When two holdings or lines of
precedent conflict, the earlier holding or line of precedent controls.”); Kovacevich
v. Kent State Univ., 224 F.3d 806, 822 (6th Cir.2000) (“[W]e must defer to a prior
case when two panel decisions conflict.”); Ryan v. Johnson, 115 F.3d 193, 198 (3rd
Cir.1997) (“Under Third Circuit Internal Operating Procedure 9.1, when two
decisions of this court conflict, we are bound by the earlier decision.”); Newell Cos.
v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed.Cir.1988) (“This court has adopted the
rule that prior decisions of a panel of the court are binding precedent on subsequent
panels unless and until overturned in banc. Where there is direct conflict, the
precedential decision is the first.” (citations omitted)). The Eighth Circuit,
however, follows a different approach—a panel “faced with conflicting precedents
[is] free to choose which line of cases to follow.” Graham v. Contract Transp.,
Inc., 220 F.3d 910, 914 (8th Cir.2000).
We believe the better practice is the one articulated by the panel majority and
followed by most other circuits. When published panel opinions are in direct
conflict on a given issue, the earliest opinion controls, unless the prior opinion has
been overruled by an intervening opinion from this court sitting en banc or the
Supreme Court. . . . [McMellon v United States, 387 F3d 329, 333 (CA 4, 2004).]
While we are not bound to apply these federal circuit-court decisions, see Harper Woods
Retirees Ass’n v City of Harper Woods, 312 Mich App 500, 510-511; 879 NW2d 897 (2015), we
find them extremely persuasive and therefore adopt the majority rule to the effect that, when a
panel of this Court is confronted with conflicting, binding precedents issued by this Court, the
earlier precedent controls.12
We therefore deem Armijo to be the controlling and binding authority on this issue, and we
follow it.13 Accordingly, following Armijo, we conclude that AO 2020-3 did not apply to the
statute of limitations in this case (which expired after the exclusion period of the AOs) and we
affirm the trial court’s order granting summary disposition in favor of defendants.
12
“The federal circuit courts normally sit in three-judge panels,” and “a holding by a three-judge
panel is binding precedent within the circuit.” Garner et al., The Law of Judicial Precedent (St
Paul: Thomson/West, 2016), p 495. Generally, “a panel decision can be abrogated only by an
intervening Supreme Court decision, an en banc decision to overturn, or a statutory amendment.”
Id. Thus, the federal system is similar to ours, in which published decisions issued by a three-
judge panel of an appellate court are binding precedent within that appellate court, unless through
an established mechanism the Court overrules that precedent. In other words, the federal system
operates essentially the same as the Michigan system, except that we use a “conflict panel” or
“special panel,” MCR 7.215(J), rather than an “en banc” panel.
13
Even if we followed the Eighth Circuit rule that we may choose which precedent to apply, for
the reasons explained in this opinion, we would still choose to apply Armijo. In no event, however,
would we be required to apply Carter and Linstrom.
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C. CONSTITUTIONAL VALIDITY OF ADMINISTRATIVE ORDERS
Defendants alternatively contend that it was beyond our Supreme Court’s constitutional
authority to extend the statute of limitations. We agree. We nonetheless are obliged to follow
Carter’s holding to the contrary, but doing so does not affect the outcome of this case because, for
the reasons addressed earlier in this opinion, the AOs simply did not apply in these circumstances.
After Carter, this Court decided Compagner. In Compagner, we went through an
extensive separation-of-powers analysis explaining how, under the Michigan Constitution and our
caselaw, “it is within the constitutional purview of our Supreme Court to ‘by general rules
establish, modify, amend and simplify the practice and procedure in all courts of this state,” Mich
Const Art. 6 § 5, but “[i]t is within the constitutional purview of the Legislature, however, as the
people’s duly-elected representatives in the policy-making branch of government, to enact the
substantive law of the state.” Id. at __ (footnote omitted); slip op at 13-14. Further, because
“[s]tatutes regarding periods of limitations are substantive in nature,” Gladych v New Family
Homes, Inc, 468 Mich 594, 600; 664 NW2d 705 (2003), and because “to the extent [a statute]
enacts additional requirements regarding the tolling of the statute of limitations, the statute would
supersede the court rule,” id. at 600-601, “those substantive matters of public policy, as set forth
in the [Revised Judicature Act, of 1961 MCL 600.101 et seq.], therefore fall solely and
indisputably within the purview of the Legislature, not the judiciary.” Compagner, ___ Mich App
at ___ (footnote omitted); slip op at 15. Specifically, we explained as follows:
There is no dispute in this case—and, as noted, the caselaw in any event
conclusively establishes—that the Legislature’s enactments regarding the statute of
repose and related tolling conditions are matters exclusively within the
constitutional province of the Legislature. The pertinent question, therefore, is
whether AO 2020-3 addressed matters that are purely within the Supreme Court’s
constitutional purview, i.e., addressing the “practice and procedure in all courts of
this state,” Mich Const Art. 6 § 5, or whether it unconstitutionally intruded into the
legislative sphere.
* * *
Although plaintiffs posit that the Supreme Court’s authority to issue AO
2020-3 axiomatically flowed from the limited, procedural time-computation
tweaking that it adopted in MCR 1.108(1), nothing could be further from the truth.
The minor, procedural effects of MCR 1.108(1) are minimal in nature, insignificant
in temporal duration, designed purely to ensure that filings are not due when the
courts are closed, and can properly be characterized as falling within the “practice
and procedure” bailiwick of the Supreme Court Const 1963, art 6, § 5. The effects
of AO 2020-3, by contrast, are vast, indefinite in duration, purporting to apply
throughout the entirety of a state of emergency period that was itself wholly
undefined, potentially limitless, repeatedly extended, and bounded by nothing
beyond the Governor’s sole discretion (at least until such time as the Supreme Court
itself declared her authority to be invalid and unconstitutional and her EOs to be
without any basis in law). AO 2020-3 was of an entirely different scope and nature
than is MCR 1.108(1) . . . . [Id. at __; slip op at 15-19 (footnote omitted).]
-14-
Ultimately, we concluded that AO 2020-3 “impermissibly and unconstitutionally intruded
on the Legislature’s sole and exclusive authority to determine the substantive law of the state of
Michigan.” Id. at __; slip op at 19. Accordingly, we declared a conflict with Carter relative to
the constitutional validity of the Supreme Court’s AOs. MCR 7.215(J)(2). Id. at __; slip op at 20.
Since our opinion in Compagner was issued, two relevant events have transpired. First,
this Court conducted a poll of its judges under MCR 7.215(J)(3), and subsequently issued an order
that a special panel not be convened.14 Consequently, Carter remains binding on us in this
respect.15 Second, our Supreme Court granted an application for leave to appeal in Carter.
Consequently, even if we were predisposed to again declare a conflict with Carter on this issue,
this Court would be precluded from again polling its judges or from convening a special panel.
MCR 7.215(J)(3)(b).
We nonetheless agree with Compagner and fully adopt and incorporate its rationale on the
constitutional issue. We also respectfully urge our Supreme Court, in considering the issues now
before it in Carter, to reject the analysis and conclusion set forth in Carter, and to instead adopt
the analysis and conclusion of Compagner on this issue. Unless and until the Supreme Court does
so, however, we remain bound to follow Carter on this issue.
III. RESPONSE TO THE DISSENT
We appreciate the frustration of our dissenting colleague, particularly given that he served
on the panel that issued the flawed decision in Carter. With respect, however, the dissent continues
to ignore or fail to understand that Carter was bound to follow Armijo. Indeed, and paradoxically,
while the dissent accuses the majority in this case of improperly refusing to follow the
“controlling” decision in Carter, it was in fact Carter that improperly refused to follow the earlier-
published and binding decision in Armijo.
The dissent lamentably spills much of its ink on histrionics and personal attacks. That is
truly unfortunate. The dissent’s apparent pique over our revelation of Carter’s improprieties
would be better directed at the Carter panel itself than at us. Our only goal is the preservation of
the integrity of the judicial process, which can only be achieved by the transparency we have
brought to this issue. We sympathize with our dissenting colleague’s plight, given the necessity
of our disclosure of his participation in Carter’s indiscretions. But we owe a higher obligation to
14
See Compagner v Angela Burch PA-C, unpublished order of the Court of Appeals, entered
June 21, 2023 (Docket No. 359699).
15
As noted in Compagner, the Armijo Court decided the case before it on narrower, non-
constitutional grounds; therefore, the lead opinion in Armijo opted not to address the issue of the
constitutionality of the AOs. Armijo, ___ Mich App at ___; slip op at 6. The concurring opinion
in Armijo expressed that there was “a strong argument that the administrative orders before us are
unconstitutional.” Armijo, ___ Mich App at ___; slip op at 2 (opinion by RIORDAN, J., concurring).
Compagner subsequently explained in detail why the AOs indeed were unconstitutional.
Compagner, ___ Mich App at ___, slip op at 8-16. We agree with the Armijo concurrence and
with Compagner.
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this Court as a whole, and to our system of justice, and we cannot fulfill that obligation by turning
a blind eye to the mischiefs that Carter wrought upon the proper functioning of our legal system.
We can only properly fulfil that obligation by transparently exposing Carter’s wrongs and by
putting the law—and the legal process—back on its proper footing.
The dissent devotes several pages to relitigating the underlying issue (and to falsely
attacking the majority for supposedly doing so). But as we explained earlier in this opinion, our
focus is “not on the substantive issue decided in Armijo and Carter (i.e., whether the AOs applied
to limitations periods that expired after the exclusion period), but rather on the procedural issue of
which decision— Armijo or Carter—controls.” While the dissent characterizes us as being
“obsessed” with that procedural issue, we submit that it is one worthy of obsessing over because
it is one on which the very integrity of the judicial process depends. Carter, by improperly
disregarding Armijo in furtherance of its desired outcome, threw the judicial process to the wind.
As much as the dissent may feign concern for the rule of law, for stare decisis, for binding
precedent, and for “inviting chaos,” it was—in truth—Carter that did all of that. While our
dissenting colleague may lament that we are now, regrettably, having to expose Carter’s violation
of our court rules (and our dissenting colleague’s participation in that), it is imperative to the
integrity of our judicial process that we do so.
The dissent offers a meager defense to what Carter did. It simply repeats Carter’s claim
that Armijo could be distinguished because it involved an NOI (whereas Carter involved a statute
of limitations). But as we have already painstakingly explained in this opinion—which the dissent
ignores and fails even to address—Carter’s claimed distinction of Armijo was no distinction at all.
Armijo involved both an NOI and a statute of limitations. In both Armijo and in Carter, the statute
of limitations did not expire until after the exclusion period ended.16 A careful consideration of
Armijo demonstrates beyond any shadow of a doubt that Armijo held not only that the AOs did not
toll the NOI period, but that they also did not toll the statute of limitations. Carter either ignored
or failed to understand that and therefore indisputably erred by failing to follow the binding
precedent of Armijo. MCR 7.215(J).17
16
The statute of limitations in Armijo (which was originally scheduled to expire on March 6, 2020),
was tolled by the plaintiff’s February 19, 2020 service of an NOI, as a consequence of which the
statute of limitations was extended for 182 days, MCL 600.5856(c), to September 4, 2020. The
plaintiff therefore had to file suit between August 19, 2020 (when the NOI period expired) and the
extended statute of limitations filing deadline of September 4, 2020.
17
No one understands the holding of Armijo better than the Armijo panel members themselves,
one of whom is also a signatory to this opinion. Judge Riordan joined the Armijo majority opinion
in full, holding that the AOs “only applied to deadlines which took place during the state of
emergency,” Armijo, ___ Mich App at ___, and he further wrote in his Armijo concurrence that
“[i]t is undisputed that the effect of those administrative orders was to toll otherwise-applicable
statutes of limitation between March 10, 2020, and June 20, 2020.” Armijo, ___ Mich App at ___
(RIORDAN, P.J., concurring). Further, Judge Riordan aptly recognized in his Armijo concurrence,
as the dissent does now in the matter before us (and as Judge Boonstra—the author of this
opinion—and Judge Redford—the author of the majority opinion in Armijo—did in Compagner),
-16-
Carter’s own proffered explanation for its refusal to follow Armijo, i.e., that the NOI period
in Armijo “entirely encapsulated the state of emergency period,” Carter, ___ Mich App at ___,
slip op at 5, fares no better. As we have explained in detail in this opinion, the NOI issue is totally
irrelevant, a red herring. The majority and the dissent agree that, as Armijo held and Carter
acknowledged, the AOs did not toll NOI waiting periods. Therefore, and at the risk of a degree of
repetition that apparently is necessary, because the statute of limitations in Armijo did not expire
(because of an untolled NOI period) until after the exclusion period, and because Armijo held the
plaintiff’s claims in that case to be time-barred, Armijo necessarily also held (as the requisite and
essential basis for that conclusion) that the AOs did not apply to deadlines that fell after the
exclusion period ended. Carter either failed to understand that or invented a supposed distinction
that would obfuscate the fact that it was violating our court rules by failing to follow Armijo. See
MCR 7.216(J)(1). In either event, Carter was plainly wrong to conclude that Armijo’s
determination that the AOs did not apply to post-exclusion-period deadlines was “not necessary to
the resolution of that appeal,” Carter, ___ Mich App at ___, n 3, slip op at 5, and that it was,
therefore, “nonbinding dicta.” Id. The dissent in this case makes the same mistake. Its (and
Carter’s) simplistic and misleading efforts to distinguish Armijo simply do not withstand
scrutiny.18
We thus are not, as the dissent charges, following Armijo (and not following Carter) simply
because we don’t agree with Carter, or because we are seeking an outcome we prefer, or somehow
out of “disdain.” 19 To the contrary, we are following Armijo because it was a binding decision
that Carter improperly did not follow. The dissent is correct that in the normal course of events a
panel of this Court that disagrees with a prior published decision should follow it while seeking to
“the serious and uncertain nature of the COVID-19 pandemic at its outbreak.” Armijo, ___ Mich
App at ___, n 2 (RIORDAN, P.J., concurring). However, as the Armijo concurrence stated, it is a
longstanding principle of constitutional law that “[e]mergency does not create power. Emergency
does not increase granted power or remove or diminish the restrictions imposed upon power
granted or reserved.” Id., quoting Home Bldg & Loan Ass’n v Blaisdell, 290 US 398, 425; 54 S
Ct 231; 78 L Ed 413 (1934). Likewise, emergency does not lessen the obligation of any judge of
this Court to exercise his or her duty to follow the law and binding precedent. The dissent clearly
disagrees and urges the majority to disregard their sworn duty as members of this Court, solely in
order to reach a policy outcome that he apparently desperately desires and for which he has
previously advocated (albeit without the support of any legal authority). Indeed, the Carter panel
on which he served was only able to reach that desired outcome by blatantly disregarding the
precedent to which it was bound. We choose not to follow in those injudicious footsteps.
18
The dissent wonders what has changed since Compagner stated that it “appear[s] to be bound
by Carter on this issue.” Compagner, ___ Mich App at ___; slip op at 11. Simply put, what has
changed is that, while Compagner focused its analysis principally on the constitutional issue, we
have now engaged in a heightened level of scrutiny (of the interplay between Armijo and Carter),
a level of scrutiny that the dissent apparently continues to eschew.
19
Our dissenting colleague knows full well that he is solely responsible for the fact that we have
“allow[ed] months to pass” since this case was heard (over five months ago). That is hardly a
basis for impugning the integrity or motives of this opinion’s author.
-17-
convene a conflict panel.20 But this is not the normal course of events. Rather, as we have
explained, these are highly unusual circumstances, in which one panel (Carter) refused to follow
a prior published decision of another panel (Armijo). We therefore cannot—and are not obliged
to—follow Carter on this issue because, to that extent, Carter cannot properly be viewed as a
precedentially binding prior published opinion of this Court. We need not, and should not,
contritely subject ourselves (and the proper functioning of the judicial process) to the lawlessness
that would result from following Carter on this issue. Rather, it is our obligation, under the
authorities cited, to put the law back on its proper footing by transparently explaining why Carter
was wrong not to follow Armijo and by then following Armijo as the properly controlling and
precedential authority that is applicable to the facts of the case before us. See MCR 7.216(J)(1).21
Affirmed.22
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
20
Indeed, that is precisely what Carter should have done if it disagreed with Armijo.
21
The dissent also takes us to task for supposedly not respecting that our full Court opted not to
convene a conflict panel as requested in Compagner. What the dissent does not seem to
understand, however, is that that decision related solely to the issue of the constitutional validity
of the AOs. It did not relate in any respect to the issue on which Carter improperly refused to
follow Armijo.
22
Plaintiff did not specifically raise the issue of equitable tolling before the trial court. The
doctrine of equitable, or judicial tolling, has occasionally been recognized in Michigan as tolling
relevant statutes of limitation when “the courts themselves have created confusion.” See
Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 406; 738 NW2d 664 (2007). We find the
doctrine inapplicable in this case. Plaintiff filed her complaint for medical malpractice more than
one year after the exclusionary period created by AO 2020-3 had ended. Neither the accrual of
plaintiff’s claim, nor her filing of her NOI, nor the expiration of the limitations period occurred
within, or even temporally near, that exclusionary period. Nor was there a “preexisting jumble of
convoluted caselaw through which the plaintiff was forced to navigate” at the time plaintiff filed
her complaint. See Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590 n 65; 702 NW2d 539(2005). Under these circumstances, plaintiff’s failure to file her complaint within the applicable
statute of limitations was not the “product of an understandable confusion” created by the actions
of Michigan courts, see Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 432; 684
NW2d 864 (2004), and we therefore conclude that the doctrine has no applicability in this case.
-18-