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In Ray v Taft, 125 Mich. App. 314, 320-321; 336 N.W.2d 469 (1983), another dramshop action, this Court refused to allow an amendment of a complaint under the misnomer doctrine.
Summary of this case from Vander Bossche v. Valley PubOpinion
Docket Nos. 58840, 58873.
Decided May 3, 1983.
Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen (by Fred W. Gerow and Ernest R. Bazzana), for plaintiff.
M. Glenn Grossman, for defendant Albert T. Taft.
Bell Hertler, P.C. (by John W. Bell), for defendant Pukoff.
On July 2, 1977, plaintiff, while operating his motorcycle, was struck from behind by an automobile driven by defendant St. Clair. Prior to the accident, defendant St. Clair had consumed beer at the Squire Pub. At that time, defendant Pukoff owned and operated the pub. On January 3, 1978, defendants Albert Taft and Dennis Taft were appointed co-receivers of the Squire Pub pursuant to their prior security interest in the pub's assets. However, the court order appointing them co-receivers was erroneously dated January 3, 1977. The liquor license which was associated with the Squire Pub was transferred from the Tafts as co-receivers for Pukoff to Carmine F. Buffone on August 22, 1980.
On July 20, 1978, plaintiff filed his negligence complaint against defendant St. Clair. On April 18, 1979, plaintiff filed his first amended complaint which added a dramshop action, MCL 436.22(3); MSA 18.993(3), against "Albert T. Taft, Dennis H. Taft, doing business as The Squire Pub, jointly and individually". On January 17, 1980, plaintiff filed his second amended complaint which amended his dramshop action so as to name "Albert T. Taft, Dennis H. Taft, Harold Pukoff, doing business as The Squire Pub, jointly and severally". However, because of difficulties in serving process on defendant Pukoff, substituted service on Pukoff was not effective until sometime after July 9, 1980. Defendant Pukoff timely moved for accelerated judgment pursuant to GCR 1963, 116.1(5) on July 24, 1980, claiming that the two-year dramshop statute of limitations, MCL 436.22(5); MSA 18.993(5), barred the claim against him. The trial court granted Pukoff's motion for accelerated judgment.
Defendant Albert Taft moved for summary judgment on February 27, 1981. In response to the motion, plaintiff implicitly admitted the truth of Albert Taft's averments but moved for leave to amend the complaint so as to specify that the Tafts were being sued as trustees of the Squire Pub and not as its owners. The trial court rendered the motion to amend moot by granting the motion for summary judgment pursuant to GCR 1963, 117.2(3).
Plaintiff first argues that the trial court erred by granting accelerated judgment in favor of defendant Pukoff pursuant to GCR 1963, 116.1(5). We disagree. It is unquestioned that defendant Pukoff's motion for accelerated judgment was timely filed pursuant to GCR 1963, 116.1. It is equally clear that a dramshop claim must be filed within two years from the date of the injury arising from the selling, giving or furnishing of intoxicating liquor to the person causing the injury. MCL 436.22(5); MSA 18.993(5); Browder v International Fidelity Ins Co, 413 Mich. 603, 615; 321 N.W.2d 668 (1982).
Commencement of an action against one party usually does not operate to toll the running of the applicable period of limitation as to other persons not named as defendants in the suit. Matti Awdish, Inc v Williams, 117 Mich. App. 270, 277-278; 323 N.W.2d 666 (1982). As the Court noted in Forest v Parmalee (On Rehearing), 60 Mich. App. 401, 406-407; 231 N.W.2d 378 (1975), aff'd on other grounds 402 Mich. 348; 262 N.W.2d 653 (1978):
"According to Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 53, p 112, it is `well settled' that:
"`Where a defendant is brought into an action for the first time upon the filing of an amended or supplemental complaint, the filing of the amendment constitutes the commencement of the action in so far as such new defendant is concerned. The statutory period runs until the time of the filing of the amendment, and if at that time the action is barred, a party thus subsequently brought in may avail himself of the plea.'
"An exception to this rule is that the additional defendant may be brought in after the expiration of the statute of limitations where the new party is a necessary party, or acquired its interest in the subject matter of the suit `pendente lite' or where the amendment `merely corrects a defect in the original proceeding'. 8 ALR2d 6, 112. * * * As a general rule, the statute of limitations continues to run in favor of an alleged joint tort-feasor until it is made a party to a suit. 8 ALR2d 6, § 58, p 120. 51 Am Jur 2d, Limitation of Actions, §§ 272, 277, pp 798, 800. See also Ciotti v Ullrich, 267 Mich. 136, 138-139; 255 N.W. 179 (1934), for the general rule that suit is not considered having been commenced against a new defendant until that person is made a party."
None of the aforementioned exceptions cited in Forest, supra, apply to plaintiff. Pukoff did not acquire his interest in the subject matter of the suit "pendente lite". Although plaintiff argues that the amended complaint merely corrects a defect, i.e., a misnomer, the record clearly reveals that a situation of mere misnomer did not exist. A misnomer results
"where the right party is served under a wrong name or in an incorrect capacity. In this situation, the courts have deemed the applicable statute of limitations tolled because the true defendant had notice of the litigation and was not prejudiced by the amendment. For a general discussion of the misnomer problem, including citations, see Cobb v Mid-Continent Telephone Service Corp, [ 90 Mich. App. 349], 354-357 [ 282 N.W.2d 317 (1979)]." Matti Awdish, Inc, supra, p 279.
In the case at bar, plaintiff erroneously assumes that the true defendant was the Squire Pub and thus reasons that he served it in the wrong name, i.e., defendants Taft instead of defendant Pukoff. However, the place in which the liquor is sold, given or furnished is not the defendant. Rather, MCL 436.22(5); MSA 18.993(5) provides that the person who sells, gives or furnishes the liquor is the true defendant in a dramshop action. Because defendant Pukoff was the true defendant, the trial court did not encounter a misnomer situation. Pukoff was not named as a defendant until after the expiration of the period of limitation, and he was not served in either his right name or a wrong name until after the expiration of the statutory period of limitation. Neither is there anything in the record to suggest that Pukoff had actual notice or constructive notice of the lawsuit within the limitations period.
Plaintiff further argues that Pukoff was a necessary party to the dramshop action so as to be within one of the exceptions stated in Forest, supra. Although MCL 436.22(5); MSA 18.993(5) requires the intoxicated person to be named as a necessary party defendant in a dramshop action, the converse is not true, i.e., the retailer of liquor is not a necessary party in a negligence action against an intoxicated driver. Plaintiff filed his initial suit against an alleged intoxicated driver, and Pukoff was not a necessary party in an action against a defendant driver involved in the collision. Neither was Pukoff a necessary party in any action filed against that business entity known as "The Squire Pub", because a dramshop action is not even commenced until the person who allegedly sold, gave or furnished the liquor is joined as a defendant.
Plaintiff's failure to comply with the applicable statute of limitations is not excused by any alleged "due diligence" on the part of plaintiff in attempting to identify the liquor licensee. Such an argument is neither legally nor factually persuasive in the context of the facts presented in the case at bar. Statutes of limitation serve a vital and necessary function in the legal system.
"`Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.'" Charpentier v Young, 83 Mich. App. 145, 151; 268 N.W.2d 322 (1978), citing Wood v Carpenter, 101 U.S. 135, 139; 25 L Ed 807, 808 (1879).
In view of the strong policy considerations favoring statutes of limitation, we hold that plaintiff's reliance upon a misdated court order did not constitute due diligence sufficient to toll the running of the statutory period of limitation. Defendant Pukoff should not be denied the protections afforded by the statute on so casual a basis. We hold that a minimum standard of due diligence in the case at bar would have included an investigation by plaintiff of the primary source of records of liquor licensees as of the date of the accident. A plaintiff's right to obtain information as to the identity of liquor licensees from the Michigan Liquor Control Commission is provided by the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801 et seq.
As to plaintiff's contention that the trial court erred by granting summary judgment pursuant to GCR 1963, 117.2(3) in favor of defendant Albert Taft, we find that the grant of summary judgment was appropriate. When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Before the judgment may properly be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. The motion has the limited function of determining whether material issues of fact exist. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist. Partrich v Muscat, 84 Mich. App. 724, 730-731; 270 N.W.2d 506 (1978).
The court granted defendant Albert Taft's motion for summary judgment as to his personal liability. Taft's uncontroverted affidavit stated that, on the date of the accident, he had only a security interest in some of the Squire Pub's assets. He further averred that he did not become one of the pub's operating receivers until 1978. MCL 436.22(5); MSA 18.993(5) establishes a dramshop action "against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person who has caused or contributed to the injury". This language does not include one who merely holds a security interest in the establishment. Liability under the dramshop act is limited to persons within the class of liquor traffickers specifically delineated in the provisions of the dramshop act. Guitar v Bieniek, 402 Mich. 152, 166; 262 N.W.2d 9 (1978). Because plaintiff presented nothing that would create a genuine issue of material fact as to the averments in Albert Taft's affidavit, the trial court properly granted summary judgment in favor of defendant Albert Taft.
Plaintiff finally argues that the trial court erred by denying his motion to amend his complaint pursuant to GCR 1963, 117.3. Plaintiff's proposed amendment would have charged Albert Taft with liability in his official capacity as co-receiver of the Squire Pub as opposed to liability in his personal capacity as owner and operator. The trial court apparently ignored plaintiff's motion to amend, thus implicitly denying it. GCR 1963, 118.1 provides that leave to amend shall be freely given when justice so requires. The trial court's failure to set forth specific findings as to why justice would not be served by a requested amendment constitutes reversible error. Hanon v Barber, 99 Mich. App. 851, 857; 298 N.W.2d 866 (1980). In such a case, this Court may grant the motion pursuant to GCR 1963, 820.1(7). Goldstein v Kern, 82 Mich. App. 723, 727; 267 N.W.2d 165 (1978).
Nevertheless, we decline to reverse on these grounds. The trial court does not abuse its discretion in refusing to permit an amendment when the amendment would be futile. Ben P Fyke Sons v Gunter Co, 390 Mich. 649, 656; 213 N.W.2d 134 (1973), citing Foman v Davis, 371 U.S. 178, 182; 83 S Ct 227; 9 L Ed 2d 222 (1962). In the instant case, plaintiff's proposed amendment would have asserted liability against Albert Taft in his official capacity as co-receiver of the Squire Pub. We have already noted that there is no authority which permits a dramshop action to be brought against one who did not sell, give, or furnish the intoxicating liquor to the alleged intoxicated person who caused the injury. Plaintiff once again apparently erroneously assumes that liability for his injuries attaches to the bar; however, as we have previously stated, the dramshop act attaches personal liability to the person who sold, gave or furnished the intoxicating liquor and his or her surety. See Guitar, supra; Browder v International Fidelity Ins Co, 413 Mich. 603, 612-613; 321 N.W.2d 668 (1982).
Affirmed.