Straman v. Lewis

559 N.W.2d 405 (1996) 220 Mich. App. 448

Minerva E. STRAMAN, Plaintiff-Appellant,
v.
Carol LEWIS and Lynda Hurlow, Defendants-Appellees.

Docket No. 183186.

Court of Appeals of Michigan.

Submitted June 20, 1996, at Grand Rapids. Decided December 13, 1996, at 9:25 a.m. Released for Publication February 25, 1997.

Edward E. Robinson, Ltd. by Edward E. Robinson, Chicago, IL, for plaintiff-appellant.

Law Offices of Boothby & Yingst by Robert A. Yingst, Berrien Springs, for defendants-appellees.

Before: MacKENZIE, P.J., and MARKEY and J.M. BATZER,^[*] JJ.

MacKENZIE, Presiding Judge.

Plaintiff was dismissed as an elementary school principal, allegedly because of defendants' interference. This lawsuit followed. The matter went to mediation and resulted in the mediation panel's determination that plaintiff's complaint was frivolous. Plaintiff rejected the mediators' evaluation and chose to proceed to trial. The trial court subsequently dismissed the action with prejudice because plaintiff failed to post the bond required under MCR 2.403(N)(1) after the mediation panel found her complaint was frivolous. Plaintiff appeals as of right. We reverse and remand.

MCR 2.403(N)(1) provides in relevant part:

If all or part of the evaluation of the mediation panel is rejected, the action proceeds to trial in the normal fashion. In a tort action to which ... MCL 600.4963(2); MSA 27A.4963(2) [tort action mediation] applies,if the evaluation indicates that the panel unanimously found that a party's action or defense as to any other party is frivolous, the following provisions apply:

(a) The party whose action or defense was found to be frivolous shall post a cash or surety bond, pursuant to MCR 3.604, in the amount of $5,000 for each party against whom the action or defense was determined to be frivolous.

* * * * * *

(d) If the bond is not posted as required by this rule, the court shall dismiss the claim found to have been frivolous, and enter the default of the person whose defense was found to be frivolous. [Emphasis added.]

In Knoke v. Michlin Chemical Corp., 188 Mich.App. 456, 470 N.W.2d 420 (1991), this Court determined that a party is not required to post the bond mandated under MCR 2.403(N)(1)(a) until the circuit court has conducted a review de novo of the mediators' decision that a claim is frivolous. The Supreme Court granted leave in Knoke on June 1, 1992, 439 Mich. 1019, 485 N.W.2d 559 (1992), but on July 28, 1992, the appeal was "dismissed upon stipulation of the parties ... with prejudice and without costs." 439 Mich. 1019, 487 N.W.2d 409 (1992).

In this case, the trial court acknowledged this Court's opinion in Knoke, but ruled that the Supreme Court's order dismissing the applications for leave to appeal had the effect of vacating the Knoke opinion—as opposed to terminating the proceedings in the Supreme Court—thus leaving Knoke without effect or precedential value. The trial court then ruled, contrary to Knoke, that dismissal of plaintiff's action without judicial review of the mediators' decision was appropriate under MCR 2.403(N)(1)(d) because she had not posted the requisite bond.

On appeal, plaintiff argues, first, that the trial court erred in determining that this Court's decision in Knoke lacked precedential value and, second, that under Knoke the trial court also erred when it dismissed her complaint. We agree.

MCR 7.215(C)(2), addressing the effect of this Court's opinions, provides:

A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.

Thus, the publication of an opinion of this Court creates binding precedent statewide, and, contrary to past practice as reflected by People v. Phillips, 416 Mich. 63, 330 N.W.2d 366 (1982), the opinion remains binding "until such time as a decision of the Supreme Court enters altering the lower court decision or questioning its rationale." 6 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 315. See also Michigan Millers Mutual Ins. Co. v. Bronson Plating Co., 197 Mich.App. 482, 496 N.W.2d 373 (1992) (holdings of this Court not addressed on the merits by the Supreme Court remain binding despite reversal on other grounds).

Applying these principles to the Knoke decision, it is clear that the case remains precedent that is binding on the trial court under MCR 7.215(C)(2) and also on this Court under Administrative Order No. 1996-4, see 451 Mich xxxii (1996). The Supreme Court's order merely dismissed the applications for leave to appeal on the basis of the parties' stipulation. The order did not address the merits of this Court's opinion in Knoke, it did not alter this Court's decision, and it did not question this Court's rationale. Thus, stare decisis required the trial court to follow Knoke in this case.

Under Knoke, plaintiff, without posting a bond, was entitled to a review de novo of the mediators' determination that her complaint was frivolous. Because the trial court dismissed her complaint for failure to post such a bond, we must reverse. Consistent with Knoke, we remand to the trial court for a review de novo of the mediators' determination that plaintiff's claim was frivolous. If the court upholds that determination, then plaintiff will be required to post a bond as required by MCR 2.403(N)(1), and her failure to do so will constitute grounds for dismissal.

Reversed and remanded for further proceedings consistent with this opinion. We retain no further jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.