The summer season is upon us and the Supreme Court has sprung into action, helping clarify and shape the practice of law in the State of Michigan. Included amongst the Court’s recent decisions was the release of an opinion in the matter of Robert Walters vs. Nathan Nadell. Moblo & Fleming has been involved in this case since its inception, representing Defendant Nathan Nadell.
This case involved a third party automobile negligence claim against Defendant. The matter was actually the second Complaint filed by Plaintiff regarding the accident in question. Plaintiff previously filed a Complaint which he was unable to serve upon Defendant. At the time, Defendant was an active member of the military. The first matter was eventually dismissed without prejudice. Plaintiff then filed a second action. However, the second action was filed beyond the three year period allowed in MCLA 600.5805(10). Plaintiff was eventually able to serve Defendant with the second Complaint while he was stationed at Fort Benning in Georgia.
Counsel for Defendant immediately filed a motion seeking dismissal with prejudice against Plaintiff on the grounds that the statute of limitations had expired. Plaintiff responded to Defendant’s motion claiming that the statute of limitations was tolled pursuant to MCLA 600.5853, which discusses an individual’s absence from the state. The trial court granted Defendant’s motion and dismissed Plaintiff’s Complaint with prejudice.
Plaintiff then filed an appeal with the Court of Appeals arguing again that the statute of limitations was tolled pursuant to MCLA 600.5853. Plaintiff also argued for the first time that the statute of limitations was tolled pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. App. §526 ("SCRA"). The Court of Appeals affirmed the trial court’s decision granting Defendant’s motion for summary disposition. The Court of Appeals noted that Plaintiff’s arguments regarding the SCRA had not been properly preserved for appellate review since Plaintiff had not raised the argument before the trial court. The Court of Appeals went on further to hold that the application of the SCRA was discretionary and that they chose not to apply same.
Thereafter, Plaintiff filed an Application for Leave to Appeal with the Supreme Court. Plaintiff only sought review regarding the ruling in reference to the SCRA. Defendant once again argued that Plaintiff had failed to properly preserve the issue for appellate review. The Supreme Court, in lieu of granting leave to appeal, affirmed the judgment of the Court of Appeals, but did so for different reasons. The Supreme Court held that the provisions of the SCRA were not discretionary. The Supreme Court went through lengthy analysis to support the determination that the Court of Appeals and trial courts must apply the SCRA if one of the parties is an active member of the military. However, the Supreme Court agreed with the Court of Appeals that Plaintiff had failed to preserve this argument for appellate review. The Supreme Court held that Plaintiff had waived his rights pursuant to the SCRA by failing to raise the argument at the trial court level.
The Supreme Court outlined the clear rule of law that a service member can be found to have waived the protections of the SCRA if they are not properly asserted. Plaintiff argued that the specific language of the SCRA does not allow for a waiver by a non-service member. The Supreme Court disagreed with this argument. The Supreme Court opined that it would be contrary to the purpose of the SCRA to provide more protection to non-service members than to service members. The Supreme Court held that Plaintiff could and did waive his rights pursuant to the SCRA since he failed to raise the tolling provision with the trial court.
