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STATE OF MICHIGAN
COURT OF APPEALS


JAMES MOSS, Plaintiff-Appellant, and MRS. JAMES MOSS, a/k/a JANICE MOSS, Plaintiff, v OAKWOOD HOSPITAL, OAKWOOD HOSPITAL BEYER CENTER, and TOUFIK TABBARA, M.D., Defendants-Appellees.

UNPUBLISHED June 16, 2000

No. 217241 Washtenaw Circuit Court LC No. 98-004560-NH

Before: Meter, P.J., and Griffin and Talbot, JJ. PER CURIAM. In this medical malpractice action, plaintiff appeals as of right from a trial court order granting defendants' motion for summary disposition on the ground that plaintiff's action was time barred. We affirm. We review de novo a trial court's decision granting a motion for summary disposition. Van v Zahorik , 460 Mich 320, 326; 597 NW2d 15 (1999). Plaintiff contends the trial court erred by relying on our decision in Scarsella v Pollak , 232 Mich App 61; 591 NW2d 257 (1998). In Scarsella, we ruled a medical malpractice complaint without an affidavit of merit is insufficient to commence an action for purposes of tolling the limitation period and, consequently, where an affidavit of merit is filed after the expiration of the limitation period the action is time barred, even though the complaint was filed before the expiration of the period of limitation. Id. at 64-65. Here, the trial court found plaintiff's affidavit was not filed until after the statute

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of limitations on his claim expired; therefore, it concluded that Scarsella required dismissal of plaintiff's case. Plaintiff does not challenge the finding that his affidavit of merit was filed after the running of the limitation period; rather, plaintiff contends that our Scarsella decision improperly distinguished controlling authority--VandenBerg v VandenBerg, 231 Mich App 497; 586 NW2d 570 (1998). In VandenBerg, we held dismissal was not required for failing to include an affidavit of merit with the complaint. Id. at 501-502. The Scarsella panel, however, distinguished VandenBerg because VandenBerg did not involve a statute of limitations problem, whereas Scarsella involved the remedy for failing to file an affidavit of merit before the statute of limitations expired. Scarsella, supra at 64, n 1. Accordingly, the Scarsella panel stated VandenBerg was both factually and legally distinguishable. Id. Since the trial court's ruling, our Supreme Court, in a per curiam opinion filed on March 28, 2000, affirmed this Court's decision in Scarsella. Scarsella v Pollak , 461 Mich 547; 607 NW2d 711 (2000). In fact, our Supreme Court noted that the Scarsella panel correctly distinguished VandenBerg. Id. at 552, n 4. Accordingly, we reject plaintiff's argument that the trial court erred by relying on the correctly decided Scarsella decision. Finally, we decline to address plaintiff's remaining issue because it was neither decided by the trial court nor raised below. Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999); Vander Bossche v Valley Pub, 203 Mich App 632; 513 NW2d 225 (1994). Affirmed. /s/ Patrick M. Meter /s/ Richard Allen Griffin /s/ Michael J. Talbot

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