Finality of judgments
We previously noted that the Michigan Supreme Court, in deciding the case of Cox v. Flint Board of Hospital Managers, had left unresolved a complicated appellate procedural issue relating to cross-appeals. This week, the Court of Appeals decided Vandenberg v. Vandenberg, and one of its rulings was that an appellee does not waive or abandon any of his legal issues for later determination by failing to file a cross-appeal. Although this ruling is in conflict with earlier Court of Appeals decisions, it is good to see that the weight of recent authority is behind the more reasonable rule.
This case did raise an interesting law of the case issue.
On the first appeal, decided in 1998, the plaintiff had appealed from the trial court's order dismissing the complaint. The limitations period, as extended, was set to expire on October 11, 1995. The complaint had been timely filed, on September 29, 1995, but was not accompanied by an affidavit of merit. The affidavit was filed in mid-December 1995, before the defendants were served. The Court of Appeals ruled that there was no prejudice to the defendants, since they were served with a complaint and affidavit as intended under the statute, and therefore that dismissal of the case was not warranted. The case was reversed and remanded. Vandenberg v. Vandenberg, 231 Mich App 497, 503; 586 NW2d 570 (1998)
In the interim, the ruling in Scarsella v Pollak, 232 Mich App 61; 591 NW2d 257 (1998), aff’d 461 Mich 547; 607 NW2d 711 (2000) was handed down. The Court in Scarsella held that the filing of a complaint in a medical malpractice case, unaccompanied by an affidavit of merit, was insufficient to toll the running of the statute of limitations. In most cases, the sanction for failure to file the affidavit is dismissal without prejudice. In a case filed on the cusp of the expiration of the limitations period, however, the Scarsella rule means that the dismissal will effectively be with prejudice.
With the case back in the hands of the trial court, the defendants moved for summary disposition, a complete dismissal, based on the Scarsella rule.
In its just-issued ruling on the second appeal, the Court held that the defendant could raise the Scarsella issue, and that to do so did not violate the rule of "law of the case", since "the panel did not address the late filing of an affidavit of merit in the context of a statute of limitations defense". The Court also observed that res judicata rules did not apply to the analysis, since that rule prohibits relitigating issues in a later case.
In my view, the law of the case issue was a very close one. The issue raised on the first appeal had been the failure to file the affidavit with the complaint, and the sanction to be applied for failure to comply. With this ruling, the defendant was able to secure the advantage of a subsequent development in the law, despite the fact that he had not been clever enough to foresee the Scarsella issue when his first motion had been filed.
6:38:49 AM 
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