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STATE OF MICHIGAN
COURT OF APPEALS


MARY M. SALTER, Plaintiff-Appellee, v JAMES E. LANNI, Defendant-Appellant.

UNPUBLISHED January 19, 1999

No. 197685 Oakland Circuit Court LC No. 94-475258 AP

Before: Hoekstra, P.J., and Doctoroff and O'Connell, JJ. PER CURIAM. Defendant appeals as of right from the trial court's order entering judgment in favor of plaintiff in the amount of $500,000 in this assault and battery action. We affirm. Defendant first argues that the trial court erred in denying his motion for summary disposition pursuant to MCR 2.116(C)(7) and (8) because plaintiff's claim was barred by the statute of limitations. We disagree. We review de novo a trial court's decision on a motion for summary disposition to determine if the moving party was entitled to judgment as a matter of law. Guerra v Garratt, 222 Mich App 285, 288; 564 NW2d 121 (1997). When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(7) on the ground that the plaintiff's claim is barred by the statute of limitations, the court must accept the plaintiff's well pleaded allegations as true and construe them in the plaintiff's favor. Guerra, supra, 222 Mich App 289. The court must consider the documentary evidence submitted by the parties to determine whether a genuine issue of material fact exists with respect to whether the plaintiff's claim is barred by the statute of limitations. Id. A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Jackson v Oliver, 204 Mich App 122, 125; 514 NW2d 195 (1994). The court must consider the plaintiff's factual allegations as true and should grant the motion only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id. Normally, an assault and battery claim is barred by the statute of limitations unless it is brought within two years after it accrued. MCL 600.5805(2); MSA 27A.5805(2); Lemmerman v Fealk, 449 -1

Mich 56, 63; 534 NW2d 695 (1995). However, a person who is under 18 years of age when a claim accrues "shall have 1 year after the disability is removed" to file the action even though the limitation period has run. MCL 600.5851(1); MSA 27A.5851(1). Here, plaintiff's infancy disability was removed on the day she turned 18 years old, April 21, 1993. Therefore, plaintiff had until April 21, 1994, her nineteenth birthday, to file her claim. Plaintiff filed her claim on April 21, 1994, and, therefore, her claim was timely filed. Defendant's argument that plaintiff's claim was not timely filed because he was not served with process until June 2, 1994, is without merit. A civil action is commenced by filing a complaint with the court. MCR 2.102(B); Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971). Defendant was properly served with process within 91 days after the date the complaint was filed. MCR 2.102(D). Accordingly, the trial court properly denied defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). Defendant next argues that the trial court erred in denying his motion to adjourn the trial because he did not have notice of the trial date. We disagree. We review a trial court's decision regarding a motion for an adjournment for an abuse of discretion. City of Lansing v Hartsuff, 213 Mich App 338, 350; 539 NW2d 781 (1995). Generally, attorneys and parties must be given 28 days' notice of the date of trial. MCR 2.501(C). However, where there is an adjournment of a previously scheduled trial, the 28 days' notice requirement does not apply. Here, the original trial date was May 9, 1995. The trial date was adjourned at least three times before the trial eventually commenced on March 8, 1996. Defendant claims that he believed the case was scheduled for mediation on March 8, 1996, and that he never received notice that the trial was scheduled to begin on that day. Defendant contends that, because of the lack of notice, he was not prepared for trial, he did not have his file and notes, he was not able to notify his witnesses, and he was not able to retain an attorney. However, defendant has not specifically demonstrated how he was prejudiced by the alleged lack of notice. Therefore, in light of the previous adjournments and the fact that defendant was apparently prepared for trial on the dates previously set for trial, we do not believe the trial court abused its discretion in denying defendant's motion for an adjournment. Defendant next argues that his rights to be free from double jeopardy and excessive fines were violated by the trial court's order awarding plaintiff $500,000 in damages. We disagree. We review constitutional issues de novo. Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998). Both the United States and the Michigan Constitutions provide that a person may not be twice placed in jeopardy for a single offense. US Const, Am V; Const 1963, art 1,

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