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STATE OF MICHIGAN
COURT OF APPEALS


JOANN E. MILLER, Plaintiff-Appellant, v MOHAMMAD ALI, M. D., Defendant-Appellee.

UNPUBLISHED May 29, 2001

No. 221534 Oakland Circuit Court LC No. 99-013587-NH

Before: Jansen, P.J., and Zahra and Owens, JJ. PER CURIAM. Plaintiff appeals as of right from a circuit court order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). Plaintiff consulted with defendant on November 18, 1996. Defendant allegedly failed to diagnose a serious condition, which another doctor diagnosed within days. Pursuant to MCL 600.2912b; MSA 27A.2912(2), plaintiff served defendant and his partner with notice of intent to file suit on December 16, 1997. Plaintiff filed suit on October 20, 1998, but that action was dismissed as to defendant on March 19, 1999, for lack of service of process within the life of the summons. Plaintiff then filed this action on March 26, 1999. The trial court's ruling on a motion for summary disposition is reviewed de novo. Gibson v Neelis, 227 Mich App 187, 189; 575 NW2d 313 (1997). When reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must accept the plaintiff's well-pleaded factual allegations as true. "If no facts are in dispute, and reasonable minds could not differ regarding the legal effect of those facts, whether the plaintiff's claim is barred by the statute of limitations is a question for the court as a matter of law. However, if a material factual dispute exists such that factual development could provide a basis for recovery, summary disposition is inappropriate." Baker v DEC Int'l, 218 Mich App 248, 252-253; 553 NW2d 667 (1996), aff'd in part, rev'd in part on other grounds 458 Mich 247 (1998). The limitations period for a medical malpractice claim is two years from the time the claim accrues. MCL 600.5805(1), (5); MSA 27A.5805(1), (5). A medical malpractice claim accrues at the time of the act or omission that gave rise to the claim "regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." MCL 600.5838a(1); MSA -1-

27A.5838(1)(1). A medical malpractice claim may be filed within the two-year period or within six months after the plaintiff discovers or should have discovered the claim, whichever is later. CL 600.5838a(2); MSA 27A.5838(1)(2). Pursuant to these provisions, plaintiff's claim against defendant accrued on November 18, 1996, when he failed to diagnose her condition. Because plaintiff discovered her claim shortly after it accrued, the limitations period was two years and expired on November 18, 1998, approximately four months before she filed this action. Plaintiff contends that the limitations was tolled under MCL 600.5856; MSA 27A.5856, which provides that the statutes of limitations are tolled: (a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant. (b) At the time jurisdiction over the defendant is otherwise acquired. (c) At the time the complaint is filed and a copy of the summons and complaint in good faith are [sic] placed in the hands of an officer for immediate service, but in this case the statute is not tolled longer than 90 days after the copy of the summons and complaint is received by the officer. (d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b. [MCL 600.5856; MSA 27A.5856.] The limitations period was not tolled under subsection (a) because defendant was never served with process in the prior action, Sanderfer v Mt Clemens General Hosp, 105 Mich App 458, 462; 306 NW2d 322 (1981), and plaintiff does not contend, nor has she shown, that the period was tolled under subsection (c). Plaintiff does contend that jurisdiction was "otherwise acquired" over defendant at the time she filed the prior action because defendant was subject to the court's jurisdiction under MCL 600.705; MSA 27A.705. That statute invests this state's courts "with the power to exercise personal jurisdiction" over nonresident defendants. Green v Wilson, 455 Mich 342, 367; 565 NW2d 813 (1997) (Kelly, J.). It is service of process on the defendant that actually enables the court to exercise its jurisdiction over him. Lucking v Welbilt Corp, 353 Mich 375; 385; 91 NW2d 346 (1958). Thus,

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