THOMAS R PRESENT V VOLKSWAGEN OF AMERICA INC
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS R. PRESENT, Personal Representative of
the Estates of SHU SHIUAN PHIONG and SHU
YURN PHIONG,
UNPUBLISHED
April 20, 1999
Plaintiff-Appellant,
v
No. 201921
Oakland Circuit Court
LC No. 96-530146 NP
VOLKSWAGEN OF AMERICA, INC.,
Defendant-Appellee.
THOMAS R. PRESENT, Personal Representative of
the Estates of SHU SHIUAN PHIONG and SHU
YURN PHIONG,
Plaintiff-Appellant,
and
KANG CHU CONSTRUCTION, LTD.,
Plaintiff/Counter-defendant,
v
No. 204998
Oakland Circuit Court
LC No. 96-519908 NP
VOLKSWAGEN OF AMERICA, INC.,
Defendant/Counter-plaintiff-Appellee.
Before: Holbrook, Jr., P.J., and Markey and Whitbeck, JJ.
PER CURIAM.
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In Docket No. 201921, plaintiff appeals as of right from an order granting summary disposition
in favor of defendant on the basis that plaintiff’s wrongful death suit was barred by the statute of
limitations. In Docket No. 204998, plaintiff appeals by leave granted from the order granting
defendant’s partial motion for summary disposition on the basis that plaintiff lacked capacity to sue
because he was not appointed as the personal representative of decedents’ estates at the time he filed
his first amended complaint. We reverse and remand in Docket No. 201921.
I. Background Facts and Procedural History
The case arises out of the untimely deaths of two minor sisters, three-year-old Shu Shiuan
Phiong and two-year-old Shu Yurn Phiong. The children’s parents are residents of Taiwan. On June 4,
1994, the children were asleep in the back of a 1990 Volkswagen Vanwagon as the vehicle sat idling
while parked at a construction site in Taiwan. The vehicle was owned by Kang Chu Construction, Ltd.,
a construction company owned by the girls’ parents. The Vanwagon’s air conditioning remained on and
running while the children slept. Plaintiff alleges that at some point the air conditioning unit caught fire
and melted, and that the children were asphyxiated by carbon monoxide and carbon dioxide gases that
were emitted into the passenger compartment of the Vanwagon as a result of this electrical fire.
A. Docket No. 204998
On March 27, 1996, plaintiff filed a wrongful death suit against defendant. Plaintiff’s complaint
alleged breach of implied warranty of fitness for intended use, negligent design and manufacture, and
failure to warn. Plaintiff was not appointed personal representative of the children’s estates by the
Oakland County Probate Court until September 4, 1996. On April 17, 1996, a first amended
complaint was filed, in which Kang Chu Construction, Ltd. was added as a plaintiff. A second
amended complaint was next filed on June 5, 1996, in which the children’s mother appeared in place of
plaintiff as the personal representative of the children’s estates. Both the first and second amended
complaints raised the same allegations as the March 27, 1996 complaint. Defendant filed a counter
claim against Kang Chu Construction, alleging that the children’s deaths were the direct result of
malfeasance or misfeasance on the part of the construction company.
Defendant filed a motion for summary disposition on June 17, 1996, alleging that both plaintiff
and the children’s mother lacked the capacity to sue because neither had been duly appointed as the
personal representative of the children’s estates. On October 31, 1996, the trial court granted
defendant’s motion for summary disposition on the grounds that as of the time of the filing of the
aforementioned complaints, “there was no duly appointed personal representative of the decedents’
estates with capacity to sue.” Plaintiff’s suit was dismissed without prejudice.
B. Docket No. 201921
On September 12, 1996, plaintiff once again initiated a wrongful death suit against defendant.
As with the lawsuit in Docket No. 204998, plaintiff alleged breach of implied warranty of fitness for
intended use, negligent design and manufacture, and failure to warn. On November 18, 1996,
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defendant filed a motion for summary disposition pursuant to MCR 2.117(C)(7), arguing that the lawsuit
was barred by the relevant Taiwanese statute of limitations.1 The trial court granted defendant’s motion
on February 6, 1997.
II. Analysis
A. Docket No. 201921: Taiwanese Two-Year Statute of Limitations
This Court reviews de novo a lower court’s determination regarding a motion
pursuant to MCR 2.116(C)(7). We review all the affidavits, pleadings, and other
documentary evidence submitted by the parties and, where appropriate, construe the
pleadings in favor of the plaintiff. A motion under this court rule should be granted only
if no factual development could provide a basis for recovery. [Smith v YMCA of
Benton Harbor/St Joseph, 216 Mich App 552, 554; 550 NW2d 262 (1996) (citation
omitted).]
The parties concede that pursuant to MCL 600.5861; MSA 27A.5861,2 the Taiwanese two
year statute of limitations and all pertinent tolling provisions of Taiwanese law apply to this case.3 This
statute of limitations, found at Article 197 of the Taiwanese Civil Code, provides in pertinent part: “The
claim for damages arising from a wrongful act is extinguished by prescription, if not exercised within two
years from the time when the injury and the person bound to make compensation became known to the
injured party.”
The relevant tolling provisions are found in Articles 129, 131 and 137 of the Taiwanese Civil
Code. Article 129 states in pertinent part:
Extinctive prescription is interrupted by and of the following causes:
1. A demand (for the satisfaction of the claim);
2. An acknowledgment (of the claim);
3. An action (brought for the satisfaction of the claim).
Article 131 states:
In the case of interruption by bringing action, if the action is withdrawn or
dismissed as nonconformable to law by a judgment which has become final, the
prescription is deemed not to have been interrupted.
Article 137 states in pertinent part:
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A Prescription which has been interrupted by an action brought for the
satisfaction of the claim recommences to run from the time when the case is decided or
otherwise disposed of without any right of appeal.
We conclude that according to the plain and unambiguous language of Article 129, the March
27, 1996 complaint is considered to be an “action” under Taiwanese law. Therefore, pursuant to
Article 131, “the prescription [would] . . . not have been interrupted” if the October 31, 1996 order
dismissing plaintiff’s wrongful death claim had been a final judgment. However, the October 31, 1996
order was not a final judgment. In pertinent part, MCR 7.202(8)(a)(i) defines a final judgment in a civil
case as being “the first judgment . . . that disposes of all the claims and adjudicates the rights and
liabilities of all the parties, including such an order entered after reversal of an earlier final judgment.”
(Emphasis added.) As previously mentioned, the October 31, 1996 order granting defendant summary
disposition was based on the fact that as of the filing of the March 27, April 17 and June 5, 1996
complaints, there existed no competent plaintiff able to maintain the cause of action on behalf of the
children. Therefore, because the October 31, 1996 order did not adjudicate the rights and liabilities of
the named parties, it was not a final judgment for purposes of Article 131.4
Given that Article 131 is not applicable under the circumstances, we now turn to Article 137.
According to Article 137, the prescription period would “recommence[ ] to run from the time when the
case is . . . disposed of without any right of appeal.” (Emphasis added.) Because the October 31,
1996 order was not a final judgment, it was not appealable as of right. MCR 7.203(B)(1). Therefore,
pursuant to Article 137, the prescription would have recommenced as of October 31, 1996. As of that
date, plaintiff still had approximately two and one-half months to file before the lawsuit would have been
extinguished by prescription.5 However, because plaintiff’s earlier refiling of the case on September 12,
1996 was within the tolled two-year time limit, we hold that the trial court erred when it dismissed
plaintiff’s suit on the grounds that the applicable statute of limitations had run.
B. Docket No. 204998: Capacity to Sue
Plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition
on the basis that he lacked capacity to sue. Plaintiff contends that although he was not appointed as
personal representative of decedents’ estates at the time he filed the first amended complaint on April
17, 1996, his subsequent appointment as personal representative on September 4, 1996, should relate
back to the date of the first amended complaint. Because we reverse in Docket No. 201921, this issue
is moot.
Reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Jane E. Markey
/s/ William C. Whitbeck
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1
Defendant also filed on November 18, 1996, a motion to dismiss based on forum non conveniens.
The record reveals that the trial court never ruled on that motion.
2
MCL 600.5861; MSA 27A.5861 reads in pertinent part: “An action based upon a cause of action
accruing without this state shall not be commenced after the expiration of the statute of limitations of
either this state or the place without this state where the cause of action accrued . . . .”
3
We note that our application of Taiwanese law in this case is in comity with the treatment of
Taiwanese law by federal law. 22 USC 3303(b)(4), part of the Taiwan Relations Act, provides:
“Whenever the application of the laws of the United States depends upon the law that is or was
applicable on Taiwan or compliance therewith, the law applied by the people on Taiwan shall be
considered the applicable law for that purpose.”
4
We also note that the October 31, 1996 order specifically states that the cause of action was
dismissed “without prejudice.” A order of dismissal without prejudice does not serve as a final
disposition on the merits. See Ozark v Kais, 184 Mich App 302, 309; 457 NW2d 145 (1990)
(Griffin, J., concurring), citing Brownridge v Michigan Mutual Ins Co, 115 Mich App 745; 321
NW2d 798 (1982) (observing that “[i]t is well settled that an order of dismissal with prejudice operates
as a final judgment on the merits for res judicata purposes”).
5
With the deaths having occurred on June 4, 1994, the wrongful death lawsuit had to be filed as of
June 4, 1996. The filing of the first lawsuit on March 27, 1996, occurred approximately two and one
half months before the prescription would have run without interruption.
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