The issue in this case is whether plaintiff may avail himself of the tolling provision of the Servicemembers Civil Relief Act (SCRA)
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, Robert Walters, was involved in an automobile accident with defendant, Nathan Nadell, on May 11, 2001. Plaintiff filed a complaint on February 26, 2004, that alleged that defendant was negligent.
On October 21, 2004, plaintiff filed a second, separate complaint against defendant, raising the same claims against defendant as those in the first complaint. Plaintiff was issued a summons for the second action that expired on January 20, 2005.
Plaintiff appealed, arguing that the period of limitations was tolled under MCL 600.5853. Plaintiff also argued, for the first time, that the tolling provisions of the SCRA required reversal. The Court of Appeals affirmed the trial court, albeit on different grounds, and declined to address plaintiff's SCRA argument, holding that it was unpreserved for appellate review and that the tolling provision of the SCRA was discretionary.
Plaintiff sought leave to appeal in this Court, arguing only that his claims were timely because the SCRA tolled the period of limitations.
II. STANDARD OF REVIEW
We review de novo the grant or denial of summary disposition.
III. THE SCRA'S TOLLING PROVISION IS MANDATORY
Plaintiff argues that the Court of Appeals erred by not addressing his SCRA argument because the tolling provision of the SCRA is mandatory and cannot be waived. We first address plaintiffs contention that the tolling provision of the SCRA is mandatory.
The former Soldiers' and Sailors' Civil Relief Act of 1940 underwent significant amendment in 2003 when Congress enacted the SCRA.
The substantive equivalent of this provision is now in 50 USC Appendix 526(a), which provides in relevant part:
The United States Supreme Court interpreted former 50 USC Appendix 525 of the Soldiers' and Sailors' Civil Relief Act and held that it was "unambiguous, unequivocal, and unlimited."
The Court of Appeals opined that the change from "shall not" to "may not" rendered the tolling discretionary. Although the term "shall" is clearly mandatory, and the term "may" is typically permissive,
The Court of Appeals erred in its conclusion that the amendment rendered the tolling provision discretionary. We hold that the tolling provision, 50 USC Appendix 526(a), is mandatory. We must next consider whether the act nonetheless permits waiver of the mandatory tolling provision.
IV. A PLAINTIFF WITH CLAIMS AGAINST A SERVICEMEMBER MAY WAIVE THE SCRA'S MANDATORY TOLLING PROVISION
The SCRA makes clear that the servicemember may waive the protections of the act. 50 USC Appendix 517(a) provides that "[a] servicemember may waive any of the rights and protections provided by this Act."
Waiver under the SCRA is not limited to servicemembers. Congress set out the
Thus, in order to strengthen the national defense, Congress enacted the SCRA to temporarily free servicemembers from the burden of participating in litigation. The tolling of periods of limitations in actions against servicemembers serves to "provide for, strengthen, and expedite the national defense" by protecting "the civil rights of servicemembers during their military service." The benefits of the tolling provision to a plaintiff suing a servicemember are merely incidental to the protections that provision provides servicemembers.
Congress enacted the SCRA as a shield to protect servicemembers from having to respond to litigation while in active service, but manifestly indicated that the SCRA's protections may be waived.
V. PLAINTIFF WAIVED THE SCRA'S MANDATORY TOLLING PROVISION
Michigan generally follows the "raise or waive" rule of appellate review.
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually.
Plaintiff's cause of action accrued on May 11, 2001, and plaintiff filed the instant complaint on October 21, 2004. Without tolling, the period of limitations for plaintiff's claim expired on May 12, 2004. Defendant moved to dismiss plaintiff's complaint with prejudice, arguing that plaintiff had filed his complaint after the period of limitations expired. It is undisputed that plaintiff did not raise the tolling provision of the SCRA in response to defendant's motion. Thus, under our "raise or waive" rule, it is undisputed that plaintiff waived the tolling provision.
It could be argued that the tolling provision cannot be waived because it is mandatory. However, as discussed, Congress did not intend to prohibit waiver
It has long been the rule in Michigan that a defendant may waive a statute of limitations defense by failing to raise it in the trial court.
We hold that a tolling provision may be waived just as a statute of limitations defense may be waived. Consistent with the rule against appellate review of issues not raised in the trial court, a plaintiff may waive the tolling of the period of limitations by failing to raise it in the trial court.
We are aware of decisions in other courts that reach the opposite conclusion,
The tolling provision of the SCRA, 50 USC Appendix 526(a), is mandatory but not self-executing. A litigant pursuing a claim against a servicemember has a responsibility to bring the tolling provision to the attention of the trial court if he desires to avail himself of its benefits. Plaintiff failed to raise the tolling provision of the SCRA in the trial court; therefore he has waived his right to raise the provision as grounds for relief on appeal. Affirmed in part and vacated in part.
WEAVER, J. (concurring).
I concur in the result of the majority opinion affirming the refusal of the Court of Appeals to address plaintiff's argument concerning the tolling provision of the Servicemembers Civil Relief Act,
TAYLOR, C.J. (concurring in part and dissenting in part).
At issue in this case is whether the tolling provision of the Servicemembers Civil Relief Act (SCRA), 50 USC Appendix 526(a), tolls the period of limitations for a plaintiff's cause of action when the plaintiff, a nonservicemember, failed to raise the tolling provision at the trial-court level. The Court of Appeals declined to address this issue because it determined that the issue was unpreserved and that, in any event, the tolling provision was discretionary. A majority of this Court holds that the tolling provision is mandatory, not discretionary, but affirms on the different ground that plaintiff waived the tolling provision when he failed to raise it at the trial-court level.
Although I agree with the majority that certain portions of the SCRA were intended to benefit both servicemembers and nonservicemembers, and I agree that the SCRA's tolling provision is mandatory, I disagree that a nonservicemember can waive the provision. Rather than affirm the Court of Appeals on a different ground, as the majority does, I would reverse in part the judgment of the Court of Appeals and remand this case to the Court of Appeals to consider whether, to avoid a miscarriage of justice, it should remand this case to the circuit court so that plaintiff can develop a complete record concerning defendant's periods of military service and any other matters relevant to whether the SCRA tolled the period of limitations applicable to plaintiff's claim.
The purposes of the SCRA, as set forth in 50 USC Appendix 502, are:
Despite the clear indication in 50 USC Appendix 502 that the SCRA is intended to benefit servicemembers, and its lack of reference to nonservicemembers, several courts have held that the SCRA was intended to benefit servicemembers and nonservicemembers alike.
By its use of the phrase "by or against," the provision implies at least an incidental benefit of tolling to nonservicemembers. Several courts have held that this tolling provision is automatic, which means that all that must be shown in order for tolling to apply while the period of limitations is running or has expired is that one party is in the armed service.
Various courts have also held that the tolling provision is mandatory and not subject to judicial discretion.
Notwithstanding the mandatory nature of 50 USC Appendix 526(a), 50 USC Appendix 517(a) expressly provides that a "servicemember may waive any of the rights and protections provided by this
In effecting this "addition" to the statute, the majority, citing congruency, relies unconvincingly on the statutory purpose of the SCRA (which does not even mention nonservicemembers) and the tolling statute (which itself contains no waiver provision) to conclude that a nonservicemember may waive the entitlement to tolling by failing to raise it. This addition by the majority is puzzling conceptually because this Court has strongly forbidden courts from adding language, or rights, to statutes. Moreover, the language in the statute that the majority uses as the basis for this addition neither mentions nonservicemembers in giving rights nor discusses the notion of waiver with respect to tolling. Moreover, our sense of what is congruent should not trump the Legislature's. Yet the majority reads waiver by the nonservicemember into the tolling provision.
Furthermore, to do so here is even more unsettling, given that the United States Supreme Court has instructed that the statute means what it says and that no additions are allowed. In Conroy v. Aniskoff, 507 U.S. 511, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993), the Court was invited to add words or concepts to the predecessor statute. It refused to do so. In Conroy, the United States Supreme Court considered whether a servicemember was required to demonstrate prejudice before being entitled to tolling under former 50 USC Appendix 525. The Court first noted that the statutory command in the tolling provision "that the period of military service `shall not be included' in the computation of `any period now or hereafter provided by any law' "—was unambiguous, unequivocal, and unlimited. Id. at 514, 113 S.Ct. 1562. In rejecting the respondents' argument—that the statute implicitly conditioned tolling on a showing of hardship or prejudice because other provisions of the SCRA were expressly conditioned on a showing of prejudice—the Court reasoned:
The United States Supreme Court's sound reasoning is no different from this Court's own standards of statutory interpretation. We assume that the Legislature intended what it plainly expressed. See Liss v. Lewiston-Richards, Inc., 478 Mich. 203,
As applied here to the SCRA, then, the fact that Congress specifically provided for a waiver of SCRA provisions by a servicemember but did not likewise provide for a waiver by a nonservicemember must be interpreted as intentional, and it is not for this Court to give to a nonservicemember the ability to waive mandatory provisions in contravention of congressional intent. Likewise, the language contained in the tolling provision, 50 USC Appendix 526(a), that arguably applies to both servicemembers and nonservicemembers is not similarly contained in the waiver provision, 50 USC Appendix 517.
Finally, although this Court generally does not review unpreserved issues, we may make an exception when review is necessary to avoid a miscarriage of justice. Napier v. Jacobs, 429 Mich. 222, 232-233, 414 N.W.2d 862 (1987). Given that plaintiff was not even required to file a complaint as long as defendant was in the service, it seems inconceivable that plaintiff could somehow lose the benefit of tolling simply by filing the complaint but being unable to timely serve defendant. Thus, it appears that a miscarriage of justice could very likely occur without review. Accordingly, I would hold that plaintiff was unable to waive the mandatory, automatic tolling provision of 50 USC Appendix 526(a), that the Court of Appeals erred in failing to consider plaintiff's argument on appeal, and that remand is necessary to address this argument.
MARILYN J. KELLY, J. (concurring in part and dissenting in part).
I agree with the majority that tolling is mandatory under the Servicemembers Civil Relief Act (SCRA)
This Court has the power to enter any order and grant relief as the case requires. MCR 7.316(A)(7). I would direct the Court of Appeals to determine whether, to avoid a miscarriage of justice, this case should be remanded to the Jackson Circuit Court. In that court, plaintiff could develop a complete record concerning matters relevant to whether the SCRA tolled the period of limitations applicable to plaintiff's claim against defendant Nathan Nadell. Such a record would include facts concerning defendant's periods of military