City of Huntington Woods v. Ajax Paving Industries, Inc.

Marilyn Kelly, J. We granted rehearing of City of Huntington Woods v Ajax, 177 Mich App 351; 441 NW2d 99 (1989), for the purpose of addressing one limited issue: whether defendant waived a possible limitations defense under MCR 3.602(1) before the trial court. After considering the arguments on motion for rehearing, we find it necessary to clarify our previous opinion. At the original hearing on the appeal of this case, Ajax argued that plaintiffs cause was barred by the one-year period of limitations contained in MCR 3.602(1). The city had filed its complaint more than a year after its arbitration award was rendered. We held that Ajax had not properly preserved this issue for appeal, as it did not plead or raise it before the trial court, and we had no record to review. Providence Hosp v National Labor Union Health & Welfare Fund, 162 Mich App 191, 194; 412 NW2d 690 (1987). Ajax contends on rehearing, correctly, that our ruling could be construed on remand to prevent it from pleading the bar of MCR 3.602(1) in its answer to the complaint. Such was not our intent. Ajax has never filed an answer to the complaint in this matter. It is entitled to wait until its responsive pleading to raise a statute of limitations defense. MCR 2.116(D)(2). Its motion for summary disposition was not such a pleading. MCR 2.110(A). Therefore, Ajax is not precluded by our ruling from raising its statute of limitations defense in its responsive pleading before the trial court on remand. If it does so. the trial court will then *602 exercise its discretion to determine whether to allow that part of plaintiffs cause which is based on the arbitration award. MCE 2.108(E), DAIIE v Gavin, 416 Mich 407, 423; 331 NW2d 418 (1982). Reversed and remanded. We do not retain jurisdiction.