Roderick D Black v. Lisa Cook

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
RODERICK D. BLACK, FOR PUBLICATION
March 23, 2023
Plaintiff-Appellant, 9:05 a.m.
v No. 360492
Berrien Circuit Court
LISA COOK, RACHEL ICKES, and JOSHUA LC No. 2021-003244-DP
ICKES,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.
PER CURIAM.
This case involves a plaintiff who seeks to establish that he is the father of a minor child
born out of wedlock, where the child’s mother is now deceased. Plaintiff asserts he was in a
relationship in 2014 with Lisa Cook. Ms. Cook died in 2020. Prior to her death, Ms. Cook gave
birth to a child. In the trial court, plaintiff sought to prove he was the biological father of Ms.
Cook’s child by filing an action under the Paternity Act, MCL 722.711 et seq. In the suit, plaintiff
named the decedent Ms. Cook and the guardians of the minor child as defendants. The trial court
concluded that because Ms. Cook was deceased, she was not a proper party defendant, that the
guardians could not be defendants in a paternity action, and that the circuit court was not the correct
forum to bring this action. For the reasons stated in this opinion, we reverse the trial court’s
dismissal of this action. We remand the case to the trial court to allow plaintiff to amend his
complaint and to name the minor child as a party defendant as specifically authorized in the
Paternity Act, MCL 722.711 et seq., and for further proceedings consistent with this opinion.
I. BACKGROUND
Plaintiff filed suit under the Paternity Act to establish his paternity of a minor child he
believed he fathered from a sexual relationship he had with Cook during May and June of 2013.
He alleged that Cook bore the child out of wedlock in Florida in 2014, that he visited the child
during that year for a period of time until he moved to New York. Plaintiff alleged that he
periodically sent Cook money but his contact ended in 2016 when Cook stopped responding and
lived a nomadic life that prevented his having contact with her and the child. Plaintiff alleged that
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the child resided in Berrien County with defendants, Rachel and Joshua Ickes, who served as the
child’s legal guardians.1 He also alleged that Cook died in 2020.
Plaintiff alleged further that he learned after investigating that a petition for appointment
of a guardian had been filed in early 2017, and that a court ordered the appointment of guardians
on May 30, 2017, but in Rachel’s later annual report, she requested that Joshua be removed
because the Ickes were divorcing.
Plaintiff requested entry of an order requiring DNA testing to determine if he was the
child’s biological father, and if so, that an order of filiation be entered and the child’s birth
certificate be amended to identify plaintiff as the child’s father. Plaintiff also requested that he be
granted sole legal and physical custody of the child following scheduled visits to enable him and
the child to reestablish their relationship. With his complaint, plaintiff filed a motion for DNA
testing pursuant to MCL 722.714. In his motion he alleged the same basic facts stated in his
complaint and requested that Rachel be ordered to make the child available for genetic testing, and
if the testing determined plaintiff was the child’s father, that plaintiff be granted sole legal and
physical custody of the child following an orderly and court-scheduled reunification between
plaintiff and the child.
Rachel answered plaintiff’s complaint and stated that the minor child resided with her, she
divorced Joshua, and that she lacked knowledge or information whether plaintiff is the child’s
biological father. She asserted that defendants could not be sued under the Paternity Act. With
her answer, Rachel filed a motion to dismiss arguing that plaintiff sued a deceased person, when
deceased persons could not be sued, and guardians, who could not be sued under the Paternity Act.
In her supporting brief, Rachel argued that neither Cook nor the child’s guardians could be sued
under the Paternity Act and that plaintiff had to file his action against a proper party, not the
deceased mother or the child’s guardians. Plaintiff opposed the motion.
At the hearing on her motion, Rachel argued consistent with her briefing. She asserted that
plaintiff filed in the wrong forum and under the wrong statute and should have brought the action
under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. Plaintiff argued
in opposition and the trial court took the matter under advisement. The trial court at a subsequent
hearing issued its opinion from the bench. It agreed with Rachel that plaintiff filed in the wrong
forum and under the wrong statute and dismissed the action in its entirety.
II. STANDARDS OF REVIEW
We review de novo a circuit court’s summary disposition decision. Dalley v Dykema
Gossett PLLC, 287 Mich App 296, 304; 788 NW2d 679 (2010). “A court may grant summary
disposition under MCR 2.116(C)(8) if the opposing party has failed to state a claim on which relief
can be granted.” Id. (quotation marks and brackets omitted). “A motion brought under subrule
(C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings.” Id. (citation
omitted). All well-pleaded factual allegations are accepted as true and construed in a light most
favorable to the nonmoving party. Id. at 304-305. “Summary disposition on the basis of subrule
1
In this opinion we will refer to the Ickes by their respective first names for purposes of clarity.
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(C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that
no factual development could possibly justify a right of recovery.” Id. at 305 (quotation marks
and citation omitted). “Questions of statutory interpretation are also reviewed de novo.” Rowland
v Washtenaw Co Road Comm, 477 Mich 197, 202; 731 NW2d 41 (2007). “Whether the trial court
has subject-matter jurisdiction is a question of law that this Court reviews de novo.” Citizens for
Common Sense in Gov’t v Attorney General, 243 Mich App 43, 49-50; 620 NW2d 546 (2000).
We also review de novo the proper interpretation and application of court rules. Haliw v Sterling
Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). “The decision whether to drop or add a party to
an action rests within the discretion of the trial court.” Ombrello v Montgomery Ward Long Term
Disability Trust, 163 Mich App 816, 824; 415 NW2d 658 (1987). “A trial court abuses its
discretion when it chooses an outcome falling outside the range of reasonable and principled
outcomes, or when it makes an error of law.” Planet Bingo, LLC v VKGS, LLC, 319 Mich App
308, 320; 900 NW2d 680 (2017) (quotation marks and citation omitted).
III. ANALYSIS
A. RACHEL’S MOTION SEEKING RELIEF UNDER MCR 2.116(C)
Plaintiff first argues that the trial court erred by granting summary disposition to defendants
because Rachel’s motion for summary disposition failed to specify the subrule of MCR 2.116(C)
in violation of MCR 2.116(C). We disagree.
Although it is true that Rachel’s motion did not specify by number the subrule of MCR
2.116(C) on which she based her motion, the motion and accompanying brief indicated that Rachel
essentially sought dismissal under MCR 2.116(C)(8) for failure to state a claim against defendants
by suing Cook, a deceased person, and by suing the minor child’s guardians. A grant of summary
disposition is appropriate under MCR 2.116(C)(8) “when a claim is so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.” Gorman v Am Honda
Motor Co, Inc, 302 Mich App 113, 131-132; 839 NW2d 223 (2013) (citation omitted). The trial
court reviewing the motion must accept as true all factual allegations supporting the claim, and
any reasonable inferences or conclusions that might be drawn from those facts. Id. However, “the
mere statement of a pleader’s conclusions, unsupported by allegations of fact, will not suffice to
state a cause of action.” ETT Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich App
392, 395; 516 NW2d 498 (1994).
Rachel based her summary disposition motion on the ground that plaintiff sued a deceased
person and the minor child’s guardians, neither of which, she argued, were proper party defendants
against whom a Paternity Act claim could be stated. The motion, therefore, sought summary
disposition within the purview of MCR 2.116(C)(8) for failure to state a claim upon which relief
can be granted. The motion and brief complied with MCR 2.116(C)’s requirement that it “must
specify the grounds on which it is based.” Contrary to plaintiff’s argument, MCR 2.116(C) does
not require that a motion for summary disposition specifically state the number of the subrule of
MCR 2.116(C), but only that it must specify which of the grounds provided under MCR 2.116(C)
warranted summary disposition. This Court has explained that “exact technical compliance . . . is
not required.” Mollett v City of Taylor, 197 Mich App 328, 332; 494 NW2d 832 (1992). Rachel’s
motion for summary disposition, therefore, was not legally flawed simply because it failed to
expressly state by subsection number that she moved for summary disposition under MCR
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2.116(C)(8). Plaintiff’s request that this Court reverse the trial court’s order granting Rachel’s
motion for summary disposition because she failed to identify the specific ground on which she
requested summary disposition seeks to elevate form over substance, and this Court has been
reluctant to reverse on this basis. Johnston v City of Livonia, 177 Mich App 200, 208; 441 NW2d
41 (1989).
Despite Rachel’s failure to specify the subrule under which she sought summary
disposition, because the substance of her motion and accompanying brief indicated that the motion
sought dismissal for failure to state a claim against defendants upon which relief could be granted,
the trial court could consider, address, and decide the motion as if specifically brought under MCR
2.116(C)(8).
B. SUMMARY DISPOSITION BASED ON WRONG FORUM
Plaintiff next argues that the trial court erred by basing its summary disposition decision
on its conclusion that plaintiff filed the action in the wrong forum. We agree.
When interpreting a statute, the primary goal is to discern and give effect to the intent of
the Legislature. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). This
Court considers statutory provisions within the context of the whole statute and must “give effect
to every word, phrase, and clause . . . [to] avoid an interpretation that would render any part of the
statute surplusage or nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142,
146; 644 NW2d 715 (2002). When statutory terms are undefined, this Court interprets the terms
according to their plain and ordinary meaning, considering the context in which the words are
used, and may consult dictionary definitions if necessary to accomplish this task. Koontz, 466
Mich at 312; Yudashkin v Linzmeyer, 247 Mich App 642, 649-650; 637 NW2d 257 (2001).
The record reflects that the trial court announced during its ruling that it adopted Rachel’s
argument. It concluded that the case could and should be filed in a different forum because “this
is an issue that would be more properly handled in a different forum” as the Paternity Act did not
anticipate or allow an action against guardians, and “this can be filed in a different forum under a
different statute but the order of filiation cannot be granted under the Paternity Act as it was not in
the letter of the law” and “I just do not find that this is the right forum.” The term “forum” is
defined in Black’s Law Dictionary (10th ed) as:
A court of justice, or judicial tribunal; a place of jurisdiction; a place of
litigation; an administrative body. Particular place where judicial or administrative
remedy is sought.
Inherent in this definition is that a court of justice or judicial tribunal has jurisdiction or authority
to determine the matter before it and it is able to provide a judicial remedy. Grounds for dismissal
because of the forum typically involve determination whether the forum is convenient or has been
properly selected by the plaintiff. “Although a plaintiff’s choice of forum is generally granted
deference, trial courts are charged to consider the plaintiff’s choice of forum and to weigh carefully
the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair
trial in this state.” Ramamoorthi v Ramamoorthi, 323 Mich App 324, 340; 918 NW2d 191 (2018)
(quotation marks and citations omitted). “Forum non conveniens is defined as the discretionary
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power of a court to decline jurisdiction when convenience of parties and ends of justice would be
better served if action were brought and tried in another forum. It is a common-law doctrine that
allows a court to decline to hear a case even though the court otherwise has jurisdiction.” Hare v
Starr Commonwealth Corp, 291 Mich App 206, 223; 813 NW2d 752 (2011) (quotation marks,
alteration, and citations omitted).
Analysis of the record in this case indicates that the trial court did not consider or determine
whether the case had been filed in an inconvenient forum or whether another court actually had
concurrent jurisdiction. Rather, the trial court used the term “forum” for its decision to dismiss
this case, because it concluded that by the nature of the case it must be pursued in the probate
court. The court stated that it agreed with Rachel’s argument that plaintiff should have filed in a
different court and that the case should have been brought under a different statute. Her argument,
however, lacked merit because her suggestion that plaintiff should file in a different court under a
different statute does not comport with the law applicable to a case seeking determination of
paternity, DNA testing, and entry of an order of filiation depending on the outcome of the testing.
The trial court, in this respect, should have focused on whether it had subject-matter
jurisdiction over the matter. The circuit court’s jurisdiction derives from the general jurisdiction
imparted to circuit courts by the Michigan Constitution. Okrie v State, 306 Mich App 445, 467;
857 NW2d 254 (2014). The Constitution provides as follows:
The circuit court shall have original jurisdiction in all matters not prohibited
by law; appellate jurisdiction from all inferior courts and tribunals except as
otherwise provided by law; power to issue, hear and determine prerogative and
remedial writs; supervisory and general control over inferior courts and tribunals
within their respective jurisdictions in accordance with rules of the supreme court;
and jurisdiction of other cases and matters as provided by rules of the supreme
court. [Const 1963, art 6, § 13.]
The Michigan Legislature enacted MCL 600.605 regarding the jurisdiction of the circuit courts
which similarly states:
Circuit courts have original jurisdiction to hear and determine all civil
claims and remedies, except where exclusive jurisdiction is given in the constitution
or by statute to some other court or where the circuit courts are denied jurisdiction
by the constitution or statutes of this state.
Subject-matter jurisdiction “is the right of the court to exercise judicial power over a class of cases,
not the particular case before it; to exercise the abstract power to try a case of the kind or character
of the one pending.” Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich
App 523, 528; 695 NW2d 508 (2004) (quotation marks and citation omitted); see also In re
Warshefski, 331 Mich App 83, 88; 951 NW2d 90 (2020).
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The Legislature created the Paternity Act as a procedural vehicle for determining the
paternity of children born out of wedlock. In re MKK, 286 Mich App 546, 557; 781 NW2d 132(2009).2 MCL 722.714 provides in relevant part:
(1) An action under this act shall be brought in the circuit court by the
mother, the father, . . . or the department of human services as provided in this act.
The Michigan court rules for civil actions apply to all proceedings under this act.
A complaint shall be filed in the county where the mother or child resides.
* * *
(3) An action under this act may be commenced during the pregnancy of
the child’s mother or at any time before the child reaches 18 years of age. . . .
* * *
(7) The party filing the complaint shall name the person believed to be the
father of the child and state in the complaint the time and place, as near as possible,
when and where the mother became pregnant. . . .
* * *
(11) It is unnecessary in any proceedings under this act commenced by or
against a minor to have a next friend or guardian ad litem appointed for the minor
unless required by the circuit judge. A minor may prosecute or defend any
proceedings in the same manner and with the same effect as if he or she were of
legal age.
(12) If a child born out of wedlock is being supported in whole or in part
by public assistance, including medical assistance, the department of human
services may file a complaint on behalf of the child in the circuit court in the county
in which the child resides. The mother or alleged father of the child shall be made
a party plaintiff and notified of the hearing on the complaint by summons. . . .
* * *
(14) If a determination of paternity is made under this act, the court may
enter an order of filiation as provided in section 7. Regardless of who commences
an action under this act, an order of filiation entered under this act has the same
effect, is subject to the same provisions, and is enforced in the same manner as an
order of filiation entered on complaint of the mother or father.
MCL 722.714a(1) provides:
2
MCR 3.217 and the rules applicable to civil actions govern actions under the Paternity Act,
MCL 722.711 et seq.
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The summons or other initial notice to a party in an action under this act
shall contain notification that the party’s obligation to support the child will be
determined and that the party’s rights to custody of and parenting time with the
child may be determined during the paternity action.
Under MCL 722.717b, after the circuit court determines paternity, it must address and decide the
issues of child custody and parenting time. MCL 722.720 grants the circuit court continuing
jurisdiction over proceeding brought under the Paternity Act, including child custody, support, and
parenting time. MCL 722.726 provides:
This act applies to all cases arising out of birth out of wedlock commenced
after this act takes effect, and such cases shall not thereafter be commenced under
chapter 42 of the Revised Statutes of 1846, as amended, being sections 722.601 to
722.612, inclusive, of the Compiled Laws of 1948, which shall, however, apply to
and govern all cases commenced thereunder prior to the time this act takes effect.
In Girard v Wagenmaker, 437 Mich 231, 251; 470 NW2d 372 (1991) (citation omitted),
our Supreme Court noted “that a proper action to determine paternity should be brought under and
governed by the provisions of the Paternity Act.” In Pecoraro v Rostagno-Wallat, 291 Mich App
303, 311; 805 NW2d 226 (2011) (quotation marks and citation omitted), this Court explained:
Standing to pursue relief under the Paternity Act is conferred on (1) the
mother of a child born out of wedlock, (2) the father of a child born out of wedlock,
or (3) the [Department of Health and Human Services] on behalf of a child born out
of wedlock who is being supported in whole or in part by public assistance.
Under the Paternity Act, the Legislature vested the circuit court with the power to
determine the paternity of a child born out of wedlock. MCL 722.714(1). Accordingly, the circuit
court had subject-matter jurisdiction over this paternity action and the circuit court was the proper
forum in which to file an action under the Paternity Act. Plaintiff, therefore, did not choose the
wrong forum in which to file his case, nor is there anything that indicates that the doctrine of forum
non conveniens applied to permit the trial court to decline the exercise of its jurisdiction. Further,
under MCL 722.714(1), plaintiff had standing to bring this action. Pecoraro, 291 Mich App
at 311. Thus, to the extent that the trial court based its dismissal ruling on the ground that plaintiff
filed the action in the wrong forum, it erred.
C PROPER PARTIES IN A PATERNITY ACTION WHERE THE MOTHER IS DECEASED
AND THERE HAS BEEN NO ESTATE OPENED
The trial court’s ruling also considered whether plaintiff sued the proper defendants.
Analysis of the Paternity Act reveals that, under MCL 722.714(1), a putative father may file an
action in the circuit court. The act, however, does not define who may be sued. Various provisions
under MCL 722.714 indicate that the mother or the putative father may be defendants. MCL
722.714(11) also provides that an action may be commenced by or against a minor and that such
“minor may prosecute or defend any proceedings in the same manner and with the same effect as
if he or she were of legal age” without the appointment of a next friend or guardian ad litem. This
provision may be interpreted as meaning that a minor mother or minor putative father may bring
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an action or be named as a defendant and may proceed without representation. The provision can
also be reasonably understood to mean that a minor child born out of wedlock may commence or
defend a paternity action and no provision under the Paternity Act states otherwise.
MCR 2.201(E)(1) permits a minor to be a party in an action with representation (a) by a
conservator if one previously has been appointed, or (b) the court must appoint a competent and
responsible person to appear as the minor’s next friend on his or her behalf, or (c) appoint a
guardian ad litem if the minor is a defendant.3 See generally Olin by Curtis v Mercy Health
Hackley Campus, 328 Mich App 337, 344-352; 937 NW2d 705 (2019). There does not appear to
be any law precluding a plaintiff in a Paternity Act case from bringing an action against a minor
child to determine the paternity of a putative father to such child.
Regardless, no provision of the Paternity Act states or implies that a deceased mother may
be sued in an action brought under the Paternity Act. MCR 2.201(C), which pertains to the
capacity to sue or be sued, provides “(1) A natural person may sue or be sued in his or her own
name.” A deceased person is no longer a natural person. This Court has addressed similar
instances where plaintiffs sued deceased defendants and concluded that deceased persons cannot
participate in litigation or be sued as a matter of law. See Packard v Brown, unpublished per
curiam opinion of the Court of Appeals, issued August 22, 2019 (Docket No. 344720), p 5; see
also Potter v Devine, unpublished per curiam opinion of the Court of Appeals, issued June 20,
2013 (Docket No. 308878), p 4.4 Plaintiff cites no authority for the proposition that it is possible
to sue a deceased person in Michigan courts. Accordingly, plaintiff cannot sue Cook.5
The Paternity Act does not address—one way or another—whether a guardian may
properly be named as a defendant in an action under the Paternity Act. The EPIC, specifically
MCL 700.5215, prescribes the powers and duties of a minor’s guardian as follows:
A minor’s guardian has the powers and responsibilities of a parent who is
not deprived of custody of the parent’s minor and unemancipated child, except that
a guardian is not legally obligated to provide for the ward from the guardian’s own
money and is not liable to third persons because of the parental relationship for the
ward’s acts. A guardian has all of the following powers and duties:
3
Notably, in domestic relations actions, under MCR 3.202, a minor person may sue or be sued as
provided in MCR 2.201.
4
Unpublished opinions of the Court of Appeals are not binding upon this Court, but may be
considered for their persuasive value. Paris Meadows LLC v Kentwood, 287 Mich App 136, 145
n 3; 783 NW2d 133 (2010); MCR 7.215(C)(1).
5
Plaintiff correctly argues that he is not an interested person under the EPIC and has no standing
to bring an action under the EPIC or open an estate for Cook. Nor can plaintiff open an estate on
behalf of the minor child to enable plaintiff to seek a paternity determination because he has not
been determined to have any paternal relationship with the child and cannot act on the child’s
behalf. The trial court erred by ruling that plaintiff must file an action in a different court under a
different statute and Rachel’s arguments to the contrary fail as a matter of law.
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(a) The guardian shall take reasonable care of a ward’s personal effects and
commence a protective proceeding if necessary to protect the ward’s other property.
If a guardian commences a protective proceeding because the guardian believes
that it is in the ward’s best interest to sell or otherwise dispose of the ward’s real
property or interest in real property, the court may appoint the guardian as special
conservator and authorize the special conservator to proceed under section 5423(3).
A guardian shall not otherwise sell the ward’s real property or interest in real
property.
(b) The guardian may receive money payable for the ward’s support to the
ward’s parent, guardian, or custodian under the terms of a statutory benefit or
insurance system, or a private contract, devise, trust, conservatorship, or
custodianship. The guardian may receive the ward’s money or property paid or
delivered under section 5102. Money or property received under section 5102 must
be applied to the ward’s current needs for support, care, and education. The
guardian shall exercise due care to conserve any excess for the ward’s future needs
unless a conservator is appointed for the ward’s estate, in which case the excess
must be paid over at least annually to the conservator. The guardian shall not use
that money or property for compensation for the guardian’s services except as
approved by court order or as determined by an appointed conservator other than
the guardian. A guardian may institute a proceeding to compel a person’s
performance of a duty to support the ward or to pay money for the ward’s welfare.
(c) The guardian shall facilitate the ward’s education and social or other
activities, and shall authorize medical or other professional care, treatment, or
advice. A guardian is not liable because of this consent for injury to the ward
resulting from the negligence or acts of third persons unless it would be illegal for
a parent to have consented.
(d) A guardian may consent to a minor ward’s marriage.
(e) Subject to the conditions and restrictions of chapter X of the probate
code of 1939, 1939 PA 288, MCL 710.21 to 710.70, a guardian may consent to
marriage or adoption of a minor ward or to the release of a minor ward for adoption.
(f) A guardian must report the condition of the ward and of the ward’s estate
that is subject to the guardian’s possession or control as ordered by the court on
petition of a person interested in the minor’s welfare or as required by court rule.
The report must detail the condition of the ward, medical or mental health treatment
or care to which the ward was subjected, and what reason, if any, exists for the
continuation of the guardianship.
(g) Within 14 days after a change in the ward’s place of residence, the
guardian shall give to the court notice of the ward’s new address.
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(h) A guardian may execute a do-not-resuscitate order on behalf of the ward
as provided in section 3a of the Michigan do-not-resuscitate procedure act, 1996
PA 193, MCL 333.1053a. [Emphasis added.]
The EPIC, in the opening language of this provision, thus appears to broadly describe the
powers and duties of a guardian as coextensive with those of a custodial parent. The subsequently-
specified powers and duties do not, however, expressly include that a guardian of a minor may be
sued as a defendant in any action.
We conclude, however, that we need not decide the issue or determine whether the trial
court correctly discerned that the Paternity Act did not authorize plaintiff to sue the minor child’s
guardians. For the reasons that follow, we instead conclude that, even if this action was incorrectly
styled, the trial court erred by dismissing it.
D. DISMISSAL WAS NOT PROPER AT THE TIME IT WAS ENTERED
Plaintiff alternatively argues that, even if guardians are not proper parties, the remedy for
misjoinder is not dismissal because, under MCR 2.207, the trial court could remove improper
parties and should have permitted plaintiff to add parties. We agree.
Under MCR 2.207, “Misjoinder of parties is not a ground for dismissal of an action. Parties
may be added or dropped by order of the court on motion of a party or on the court’s own initiative
at any stage of the action and on terms that are just.” Moreover, if “a court grants summary
disposition pursuant to MCR 2.116(C)(8) . . . , the court must give the parties an opportunity to
amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile.” Weymers
v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997); MCR 2.116(I)(5). Motions to amend
“ordinarily should be granted, and should be denied” for specific reasons, including futility. Id.“An amendment would be futile (1) if ignoring the substantive merits of the claim, it is legally
insufficient on its face; (2) it merely restates allegations already made; or (3) it adds a claim over
which the court lacks jurisdiction.” PT Today, Inc v Comm’r of Office of Fin and Ins Servs, 270
Mich App 110, 143; 715 NW2d 398 (2006) (citations omitted). “If a trial court denies a motion
to amend, it should specifically state on the record the reasons for its decision.” Weymers, 454
Mich at 659.
In this case, although plaintiff correctly invoked MCR 2.207 and suggested that the trial
court drop the named defendants, the trial court disagreed and did not permit plaintiff to move to
add a party as a defendant. Plaintiff expressed to the trial court confusion as to who could be a
defendant when the mother was deceased. Plaintiff sought the court’s instruction to no avail.
Under the circumstances of this case, the trial court should have permitted plaintiff to move
to amend. In that regard, we do not hold what a proposed amendment should or must be in this
matter but observe that potentially a pleading in a paternity action could name a minor child as a
defendant under MCL 722.714(11), and if that were done, a trial court would be authorized to
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appoint a named child a guardian ad litem to represent the child as envisioned by MCR 2.201(E).6
A party, in an appropriate case, also could potentially seek the addition of the DHHS as an
interested party under MCR 2.206(A)(2)(b) if the DHHS’s presence in an action would promote
the convenient administration of justice. Such addition might be appropriate if a minor child
received public assistance, MCL 722.714(12), or the “child is receiving services under part D of
title IV of the social security act, 42 USC 651 to 669b.” MCL 722.714(4). Regardless, plaintiff
has a right to seek and receive a determination of paternity under the Paternity Act. MCL 722.714;
Syrkowski v Appleyard, 420 Mich 367, 375; 362 NW2d 211 (1985) (“The act was created as a
procedural vehicle for determining the paternity of children ‘born out of wedlock’, and enforcing
the resulting support obligation. The plaintiff is requesting the court to determine the status of the
child and his biological paternity. The act allows fathers to seek and receive such
determinations.”).
Thus, regardless of whether the guardians can properly be named as defendants to a
paternity action, the trial court should not have dismissed the case in its entirety without permitting
plaintiff an opportunity to identify and seek the addition of an indisputably-appropriate party
defendant to permit this action to proceed. The trial court, therefore, abused its discretion by
dismissing the action in its entirety when it should have permitted plaintiff to amend his complaint
and add an appropriate party defendant as permitted under MCR 2.207 and MCR 2.118.
IV. CONCLUSION
For the reasons stated in this opinion, we reverse the trial court’s dismissal of the case in
its entirety because it should have permitted plaintiff an opportunity to add an appropriate
defendant so that plaintiff may proceed with the determination of plaintiff’s paternity of the minor
child.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Mark T. Boonstra
/s/ James Robert Redford
6
The fact that the guardian(s) in this case likely would be named the minor child’s guardian ad
litem under MCR 2.201(E)(1)(c) supports our conclusion, as a practical matter, that it is
unnecessary to determine whether a guardian may properly be directly named as a defendant to an
action brought under the Paternity Act.
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