Michigan Court of Appeals Clarifies Next Friend Appointments

The Michigan Court of Appeals recently published an opinion addressing “whether a lawsuit, timely filed by or on behalf of a minor plaintiff, is defective and invalid until the trial court formally appoints a next friend for the minor.”  Estate of Olin v Mercy Health (Docket Nos: 341523; 342937).  The Michigan Court Rules require the court to appoint a next friend for the minor in a civil action to appear on his or her behalf if the child does not have a conservator.  MCR 2.201(E).  The question addressed by the Olin panel was whether a next friend must be appointed prior to or contemporaneously with the filing of a civil action on behalf of the minor.  The Olin panel answered this question by holding that a delay in appointment of a next friend “does not render defective a timely filed complaint on behalf a minor plaintiff.”

In Olin, Nicole Curtis filed a complaint as next friend of minor Jaxon Olin one day prior to the expiration of the statute of limitations.  The complaint alleged malpractice during the performance of an adenoidectomy and tonsillectomy.  Six months after  filing  the complaint, the plaintiff filed a petition seeking appointment of Curtis as next friend for Olin.  The trial court entered an order five days later appointing Curtis as next friend.  On the same day, the defendants moved for summary disposition contending that the plaintiff never properly commenced an action and that the statute of limitations had expired.  The defendants principally relied on the Court of Appeals’ unpublished opinion in Cotter v Britt where the Cotter panel held that a plaintiff does not properly commence an action where the complaint is filed a next friend but the next friend is not appointed until after the filing of the complaint and expiration of the statute of limitations.  The trial court, finding Cotter persuasive, granted the defendants’ motion.

The Olin panel (Beckering, Servitto, Stephens) reversed the trial court’s decision on appeal.  The panel first held that Curtis was not the “real party in interest” at the time she filed the complaint.  The panel held that “where a minor is negligently injured by another and sues through his or her next friend, the claim still belongs to the minor, and it is the minor who is the real party in interest.”  The panel further held that the plain language of MCR 2.201(E) does not mandate appointment of a next friend prior to filing of a complaint and cited to late 19^th and early 20^th century era Michigan Supreme Court opinions condoning late appointment of a next friend.  Finally, the panel held that the filing of the complaint tolled the statute of limitations notwithstanding the fact that a minor does not have the capacity to sue and that Curtis was not appointed next friend until six months after the statute of limitations had expired.  The panel did not explain whether it considered the belated appointment of Curtis as next friend to have retroactive or “relation back” effect.  The opinion suggests in the final paragraph that a minor can obtain a valid judgment in the absence of a next friend appointment.  The panel dismissed Cotter in a footnote noting that unpublished opinions are not precedentially binding.

In sum, under the published Olin opinion, it appears that a next friend can be appointed at any stage of a civil action without any impact on the validity of the proceedings.  This holding raises questions regarding the purpose of the court rule mandating appointment of a next friend for a minor and whether the Olin panel’s holding renders the next friend appointment requirement of MCL 2.201(E) superfluous in the context of a personal injury action brought by a minor.