Order

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals. The Court of Appeals erred when it interpreted MCR 2.116(D)(2) and MCR 2.111(F)(3) as though they required that the defendants' affirmative defense be raised in their first responsive pleading or be waived. Unlike MCR 2.116(D)(1), which provides that certain defenses are permanently waived if not timely presented, MCR 2.116(D)(2) does not foreclose a party from adding a defense in an amended responsive pleading. Further, MCR 2.116(D)(3) permits certain other defenses to be raised at any time. The defense presented by the defendants in this case (a claim that the plaintiffs were not the real parties in interest) was properly raised by motion. MCR 2.111(F)(2), 2.116(D)(3). In this regard, we note our agreement with the statement, found in the separate opinion filed in the Court of Appeals, that the real-party-in-interest is not the same as the legal-capacity-to-sue defense. Compare MCR 2.201(B), which concerns the requirement that an action be prosecuted by the real party in interest, with MCR 2.201(C), which concerns capacity to sue or be sued. Compare also 59 Am Jur 2d 427-428, Parties, § 35, with 59 Am Jur 2d 410, Parties, § 24. However, we disagree with the conclusion stated in the separate opinion that a motion based upon the real-party-in-interest defense presented by these defendants would fall within the scope of MCR 2.116(C)(7). These defendants do not rely upon an assignment or any similar basis for the defense, but instead defend on the basis that the plaintiffs are not and never were persons who possessed a cause of action against them. A motion based on such a defense would be within MCR 2.116(C)(8) or MCR 2.116(C)(10), depending on the pleadings or other circumstances of the particular case. We REMAND this case to the Court of Appeals for consideration of the plaintiffs' claim that the Saginaw Circuit Court erred when it granted summary disposition on the ground that they are not the real parties in interest.

We do not retain jurisdiction.