Opinion
SC: 163538 COA: 356874
09-09-2022
Dana BROWNING, as Guardian and Conservator of Brenda Cupp, LIP, and as Personal Representative of the Estate of Brenda Cupp, Deceased, Plaintiff-Appellee, v. Ruth BUKO and LeFevre & LeFevre, PLLC, Defendants-Appellants.
Order
On order of the Court, the application for leave to appeal the August 2, 2021 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.
Viviano, J. (dissenting).
In the first months of the COVID-19 pandemic, this Court issued various orders that purported to toll statutory limitations periods. Defendants in this legal malpractice action contend that those orders were invalid because they were an unconstitutional exercise of legislative power. I believe defendants have raised a strong argument that should be considered now. I therefore dissent from the Court's order denying leave to appeal and would instead remand to the Court of Appeals for full consideration.
Our first order tolling statutory limitations periods, Administrative Order No. 2020-3, 505 Mich. cxxvii (2020), was issued on March 23, 2020, near the outset of the pandemic. In it, we stated:
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).[ ]
Id. at cxxvii. MCR 1.108(1) sets forth how to count the last day of any period in the court rules or statutes.
The effect of this provision was to toll statutory limitations periods. We went on to say that the "order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses ...." And the order expressly provided that "[c]ourts must have a system in place to allow filings without face-to-face contact ...." The tolling lasted for any day in which the Governor had declared an emergency. The order was effective as of March 10, 2020. We eventually ended the tolling period on June 20, 2020:
AO 2020-3, 505 Mich. at cxxviii.
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.[ ]
Administrative Order No. 2020-18, 505 Mich. clxi, clxi (2020) (emphasis added).
Thus, under this order, starting on June 20, 2020, a plaintiff would have the same number of days to file the claim as he or she had on March 23, 2020. The effect of our orders, then, was to toll the statutory limitations period from March 10, 2020, until June 20, 2020. The facts in the present case are lengthy, but the resolution of this appeal depends on our orders tolling the statutory limitations period. In June 2007, Brenda Cupp suffered a traumatic brain injury after a vehicle crash. Defendants Ruth Buko and her law firm, LeFevre & LeFevre, PLLC, represented Cupp in the resulting lawsuit. Plaintiff, Cupp's sister, obtained a guardianship over Cupp. Various proceedings dragged on for years, both here and in Kentucky. In April 2019, Cupp passed away. On June 30, 2020, plaintiff filed the present action (as guardian and conservator of Cupp as well as personal representative of Cupp's estate), against defendants, Cupp's former attorney and the attorney's law firm, for malpractice. Defendants responded by moving to dismiss the case, arguing among other things that the claim was barred by the statute of limitations. The probate court denied the motion, relying on this Court's administrative orders tolling the filing deadlines. The Court of Appeals denied defendants’ application for leave to file an interlocutory appeal, although Judge JANSEN voted to grant leave.
Throughout the relevant period, the Governor also issued executive orders with nearly identical provisions tolling statutory limitations periods. See, e.g., Executive Order No. 2020-58 (tolling "all deadlines applicable to the commencement of all civil and probate actions and proceedings, including ... any statutory notice provision or other prerequisite related to the deadline for filing of such a pleading").
It appears that plaintiff's action relies on MCL 600.5851(1), which tolls the statute of limitations for certain disabled individuals until "1 year after the disability is removed through death or otherwise ...." Cupp died on April 21, 2019, and this action was filed on June 20, 2020. Thus, assuming that Cupp was disabled and the limitations period was tolled by MCL 600.5851, she filed outside the one-year safe harbor offered by that statute. On March 10, 2020, plaintiff had 42 days to file the complaint. Because she filed well past that date, on June 30, 2022, her complaint would have been untimely. But under our administrative orders, the 42 days did not begin to run until June 20—consequently, the filing 10 days later was timely. The probate court recognized that our administrative orders made the difference. The court stated that under our orders, "starting on June 20th of 2020 plaintiff had the additional number of days that existed between March 23rd, 2020 and the expiration of the one year safe harbor on April 21st, 2020 to file her case. Plaintiff filed within the period permitted by Michigan Supreme Court administrative order 2020-18 on June 30th, 2020."
Defendants now seek leave to appeal here. They have raised the argument that our administrative orders improperly exercised legislative power. I believe defendants have presented a strong argument that merits our attention. We have very limited authority to issue court rules that prevail over statutes. We may do so only in matters dealing with practice and procedure in the courts and not in matters involving substantive law. And, with regard to statutes of limitations, we have expressly stated that "[s]tatutes regarding periods of limitations are substantive in nature." Accordingly, we held in Gladych v New Family Homes, Inc , "that, to the extent [a statute] enacts additional requirements regarding the tolling of the statute of limitations, the statute would supersede the court rule."
Defendants also challenge the Governor's orders on many of the same grounds. But because the lower court relied on our orders, I will focus on those.
McDougall v Schanz , 461 Mich. 15, 27, 597 N.W.2d 148 (1999).
Gladych v New Family Homes, Inc , 468 Mich. 594, 600, 664 N.W.2d 705 (2003).
Id. at 600-601, 664 N.W.2d 705.
Thus, our court rules and orders cannot trump a statute of limitations. And since nothing in the relevant statutory framework allows for the tolling that occurred here, the only potential grounds for the tolling order is under our equitable powers. But equitable tolling has been largely discredited. We have noted that the equitable power "has traditionally been reserved for ‘unusual circumstances ....’ " "Equitable tolling is typically available only if the claimant was prevented in some extraordinary way from exercising his or her rights." A pandemic during which the courts remain open to receive filings would not fit that bill and, unsurprisingly, it does not appear that our broad tolling orders have any historical precedent. The closest analogy appears to be caselaw allowing equitable tolling when courts were completely closed or inaccessible during wartime. Even in that context, however, the original English rule was that "the non-existence of any Courts, or their being shut, is no plea to avoid the bar of the statute of limitations." The common explanation for this rule was that if the statute of limitations did not expressly provide for tolling for the closure of courts during a war, then a court had no place reading that exception into the statute. Shortly after the Civil War, the Supreme Court of Arkansas followed a line of English cases holding "that, though the government was usurped, and the courts closed, the running of the statute of limitations was not affected; and the reason assigned was, that the statute contained no such exception ...."
See Devillers v Auto Club Ins Ass'n , 473 Mich. 562, 589-590, 702 N.W.2d 539 (2005).
Id. at 590, 702 N.W.2d 539.
51 Am. Jur. 2d, Limitation of Actions, § 155, pp. 603-604.
Blanshard, A Treatise on the Statutes of Limitation (1826), p. 162; see also Hanger v Abbott , 73 U.S. 532, 541, 6 Wall. 532, 18 L.Ed. 939 (1867) ; Buswell, The Statute of Limitations and Adverse Possession (1889), § 127, pp. 183-185; Gregory, The Effect of War on the Operation of Statutes of Limitation , 28 Harv L Rev 673, 673-674 (1915).
See Effect of War , 28 Harv L Rev at 673-674 (discussing the English cases espousing this analysis).
Bennett v Worthington , 24 Ark. 487, 489 (1866), overruled by Metro. Nat'l Bank of New York City v Gordon , 28 Ark. 115 (1872) ; see also id. (discussing the caselaw).
But this rule ultimately did not prevail. Another line of cases had, as early as 1805, reached the opposite result, holding that war could suspend statutes of limitations because alien enemies could not use our courts during hostilities. In a deluge of cases following the Civil War, the United States Supreme Court acknowledged:
See ----- v Lewis Executors , 3 N.C. 346 (D NC, 1805) ; Effect of War , 28 Harv L Rev at 675 (discussing Wall v Robson , 2 Nott & McCord 498 (S.C., 1820) ).
Text writers usually say, on the authority of the old cases referred to, that the non-existence of courts, or their being shut, is no answer to the bar of the statute of limitations, but Plowden says that things happening by an invincible necessity, though they be against common law, or an act of Parliament, shall not be prejudicial. That, therefore, to say that the courts were shut, is a good excuse on voucher of record.[ ]
Hanger v Abbott , 73 U.S. 532, 541, 6 Wall. 532, 18 L.Ed. 939 (1867) ; see also Statute of Limitations and Adverse Possession at § 128 (noting the same rule in English law).
The Court went on to hold that the statute of limitations would not bar the action when the courts were constructively closed during the Civil War. It explained that the "[a]bility to sue was the status of the creditor when the contract was made, but the effect of war is to suspend the right, not only without any fault on his part, but under circumstances which make it his duty to abstain from any such attempt." Rather, the actions of the government, over which the party had no control, suspended his remedy. Or, as the Court elsewhere stated, " ‘The law imposes the limitation and the law imposes the disability. It is nothing, therefore, but a necessary legal logic that the one period should be taken from the other.’ "
Hanger , 73 U.S. at 540.
Id.
Brown v Hiatts , 82 U.S. 177, 184-185, 15 Wall. 177, 21 L.Ed. 128 (1872) (citation omitted).
The Court reaffirmed Hanger in numerous subsequent decisions, and state courts—including those in Arkansas—eventually followed suit. The ultimate justification for these holdings was that the courts were closed to the plaintiffs. Most of the discussion in the cases focused on the reason for the closure, which was the principle that citizens of belligerents could not resort to enemy courts to enforce rights during war. If the suit was between two individuals who, during the war, had access to the same courts, then the statutes of limitations continued to run.
See Amy v Watertown , 130 U.S. 320, 9 S.Ct. 537, 32 L.Ed. 953 (1889) ; Ross v Jones , 89 U.S. 576, 22 Wall. 576, 22 L.Ed. 730 (1874) ; Brown , 82 U.S. at 184-185 ; The Protector , 79 U.S. 700, 12 Wall. 700, 20 L.Ed. 463 (1871) ; United States v Wiley , 78 U.S. 508, 11 Wall. 508, 20 L.Ed. 211 (1870) ; Levy v Stewart , 78 U.S. 244, 11 Wall. 244, 20 L.Ed. 86 (1870) ; see also Peters v McKay , 195 Or. 412, 431-32, 238 P.2d 225 (1951) (noting that "the great mass of federal and state decisions" support the view that the statute of limitations is suspended during war); Siplyak v Davis , 276 Pa. 49, 54-55, 119 A. 745 (1923) (implying an exception to statutes of limitations during war when courts were inaccessible); Ahnert v Zaun , 40 Wis. 622 (1876) (applying Hanger and its progeny); Woods v Elliott , 49 Miss. 168, 180 (1873) (adopting Hanger and explaining that suspending the limitations period "commends itself to our adoption by its good sense, reason and justice"); Metro. Nat'l Bank , 28 Ark. at 117-118 (noting its former decision in Bennett but adopting the majority view); Perkins v Rogers , 35 Ind. 124, 144-145 (1871) (adopting Hanger ); see generally War as Suspending Running of Limitations in Absence of Specific Statutory Provision to that Effect , 137 A.L.R. 1454, 1455, § 1(a) ("[I]t is now a firmly established principle of international law that the existence of a state of war between two countries or powers is effective to suspend the running of statutes of limitation as between the citizens of such countries or powers at war ....");66 Ohio Jur 3d, Limitations and Laches, § 88 ("The courts are without authority to enlarge or change those [exceptions to the limitations period] specified or to establish others. While it is true that in a few instances courts have made exceptions not found in the statute, they are only such as arise from a state of war or other imperative necessity as when the courts are shut or by act of law one party is forbidden to sue or the other is rendered incapable of being sued.").
Hanger , 73 U.S. at 540 ; see also Peters , 195 Or at 431-432, 238 P.2d 225.
See, e.g., McKinzie v Hill , 51 Mo. 303, 307-308 (1873) ("Missouri ... courts were open.... It was not necessary that the court should be held to enable [the plaintiff] to pursue his remedy and avoid the bar of the statute. He might have filed his suit with the clerk of the court, and had summons issued and served, and that would have been sufficient. There is no pretense that this course was not open to him."); Zacharie v Godfrey , 50 Ill. 186, 194 (1869) (holding that where a Louisiana resident fled the Confederacy and remained in the Union during the war, he could have brought suit in Union courts and therefore the statutory limitations period continued to run against him).
In light of this caselaw, it appears that equitable tolling is justified in these circumstances only for court closures or the inaccessibility of courts. Our administrative orders went well beyond that because they were not limited to situations in which the courts were closed. Defendants thus raise a solid argument that we lacked any legal basis for tolling the statutes and that doing so usurped the Legislature's power. While I voted for these orders along with the other members of the Court, that does not mean they should be immunized from prompt review. Time and reflection—which we did not have in abundance when the orders were issued—may reveal that we were wrong. Our initial orders were issued at a point when it was unclear whether and to what extent courts might close. Even so, as Justice Felix Frankfurter once said, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." I would not reject defendant's arguments simply because the potential flaws in our orders have become apparent only now. This case presents an important issue that should be addressed promptly. I would therefore remand this case to the Court of Appeals as on leave granted.
Maryland's highest court recently ruled that a similar court-issued order tolling statutes of limitations did not violate the separation of powers. See Murphy v Liberty Mut. Ins. Co. , 478 Md. 333, 274 A.3d 412 (2022). In that case, however, the court characterized the tolling order as "explicitly tied to the period that the courts were closed to the public." Id. at 369, 274 A.3d 412. Moreover, unlike Michigan, Maryland considers statutes of limitations to be procedural rather than substantive, and therefore its highest court has more authority to regulate limitations periods. Id. at 376, 274 A.3d 412.
If they are correct, this would not be the only recent instance in which this Court's rulemaking has invaded the legislative sphere. See Amended Administrative Order No. 2020-17, 506 Mich. ––––, –––– (2020) ( Viviano , J., dissenting) (noting that our Court had, without proper authority, issued rules suspending statutes on landlord-tenant proceedings); see also Amendments of Michigan Court Rules 2.403, 2.404, and 2.405, 508 Mich. ––––, –––– (2021) ( Viviano , J., dissenting) (noting that changes to our rules on the case evaluation process appeared to put our rules in direct conflict with statutes on the topic).
Henslee v Union Planters Nat'l Bank & Trust Co , 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).
To be sure, while the tolling orders might be invalid, particular plaintiffs who relied on those orders may argue that a court should nonetheless equitably toll a limitations period. We have, in fact, indicated that equitable tolling can apply "when the courts themselves have created confusion." Trentadue v Buckler Automatic Lawn Sprinkler Co , 479 Mich. 378, 406, 738 N.W.2d 664 (2007). But that is a different question than the one presented here, i.e., whether we have the power to preemptively toll statutory limitations periods.
Zahra, J., joins the statement of Viviano, J.