Grettenberger Pharmacy, Inc. v. BLUE CROSS-BLUE SHIELD OF MI.

120 Mich. App. 354 (1982) 327 N.W.2d 476 GRETTENBERGER PHARMACY, INC. v. BLUE CROSS-BLUE SHIELD OF MICHIGAN Docket No. 58849. Michigan Court of Appeals. Decided October 7, 1982. MacLean, Seaman, Laing & Guilford (by Dwight D. Ebaugh), for plaintiff. Butzel, Keidan, Simon, Myers & Grahan (by Henry H. Sills), for defendant. Before: M.J. KELLY, P.J., and M.F. CAVANAGH and P.R. JOSLYN,[*] JJ. PER CURIAM. Plaintiff appeals by right from a circuit court order denying the plaintiff's motion for a corrective order based on GCR 1963, 528.1. We reverse. This action began in 1975 when the plaintiff sued the defendant, claiming that the plaintiff and other Michigan pharmacies had received improperly reduced dispensing fees for services performed under the defendant's prescription program. Plaintiff was granted a partial summary judgment based on the trial court's finding that the reduced dispensing fees were in breach of contract. Thereafter, the court granted the plaintiff's motion for class certification and approved the class action notice and response and claim forms which were sent to all the potential class members. Farmer Jack Pharmacies, Inc., returned the completed response and claim forms to the plaintiff's attorneys, but it was not included in the class list filed *357 in the trial court because the plaintiff's attorneys had misfiled its forms in their office. Plaintiff then moved for summary judgment, and the court's opinion granting such confirmed that the class list (from which the Farmer Jack Pharmacies had been omitted) represented the complete and accurate identification of those parties plaintiff who were entitled to share in the judgment. We affirmed the court's decision in Grettenberger Pharmacy, Inc v Blue Cross-Blue Shield of Michigan, 98 Mich App 1; 296 NW2d 589 (1980), lv den 410 Mich 910 (1981). After the trial court entered an order implementing the judgment, the plaintiff moved for the corrective order which is the basis of this appeal, requesting that the trial court correct the alleged clerical error which had resulted in the omission of the Farmer Jack Pharmacies from the class list. The trial court ruled that the error alleged by the plaintiff was not a clerical mistake and thus the plaintiff was not entitled to a corrective order under GCR 1963, 528.1. We agree. GCR 1963, 528.1 provides: ".1 Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court." This Court recently addressed the issue of relief under GCR 1963, 528.1 in Stokus v Walled Lake School Dist, 101 Mich App 431; 300 NW2d 586 (1980), lv den 411 Mich 909 (1981). In that case, *358 the Court noted that the purpose of GCR 1963, 528.1 is: "* * * to make the lower court record and judgment accurately reflect what was done and decided at the trial level. When the alleged error is in the court's action itself, as distinguished from the record made of the court's action, the alleged error is not a clerical mistake under this rule." 101 Mich App 433. (Citations omitted.) The Court went on to note that when a plaintiff is not attempting to change the original judgment to more accurately reflect what was done and decided by the lower court but rather is attempting to add something to the prior judgment which was neither discussed nor decided, a motion under GCR 1963, 528.1 is unavailable. Stokus, p 434. We find that the plaintiff here is not attempting to change the original judgment to more accurately reflect what was done and decided at the trial level but is trying to add something to the judgment not discussed below. Plaintiff is attempting to add the Farmer Jack Pharmacies to the class list so that they will be included in the judgment despite the fact that such an addition would decrease the defendant's entitlement to funds returnable under the judgment, which was based upon a list compiled by the plaintiff's attorneys and relied upon by the trial court as complete and accurate. Thus, although the error occurred in the clerical compilation of the class list, the ensuing court action was based upon that error and the subsequent judgment accurately reflects what was done and decided at the trial level — i.e., specified members of a class list were entitled to share in a judgment, with the defendant receiving a calculable sum in return. Under these circumstances, *359 relief for a clerical mistake under GCR 1963, 528.1 is inappropriate. We do not, however, intend our holding to deny the plaintiff the relief to which it should be entitled. Plaintiff should have moved under GCR 1963, 528.3(1) for relief from the trial court's judgment and order on the basis of mistake or excusable neglect, which was clearly present in these circumstances. Since GCR 1963, 820.1, subds (1) and (7) provide this Court with the authority to amend judgments and grant such relief as the case may require, we amend the trial court's judgment and order and direct the defendant to return $8,596.53 to the plaintiff for distribution to the Farmer Jack Pharmacies, Inc. We note that this decision results in no injustice to the defendant, whose original liability for wrongfully withheld money remains the same. By correcting this mistake, money will merely be returned to the injured party rather than being retained by the party in breach of contract. Reversed. No costs. M.J. KELLY, P.J. (dissenting). I concur in the per curiam opinion's finding that relief for clerical mistake under GCR 1963, 528.1 is unavailable in these circumstances. I respectfully dissent, however, from the Court's finding that relief should be granted under GCR 1963, 528.3(1). Whether relief under this subrule is appropriate should have been briefed and argued before the circuit court. In addition, any motion under GCR 1963, 528.3(1) must be made not more than one year after the judgment. Whether we consider the judgment as having been entered by the trial court's original opinion dated June 8, 1979, or the order implementing judgment dated April 30, 1981, *360 makes no difference, because a motion for relief under GCR 1963, 528.3(1) was never made at any time by plaintiff. The motion time bar is ignored by this Court's per curiam opinion, which simply glosses over the limitation by itself granting relief for a motion plaintiff should have made. I think the majority's approach is procedurally improper. I would hold, therefore, that the trial court did not err in denying plaintiff's motion for a corrective order. I would affirm. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.