JEFFREY BROOKSHIRE V BHARTIBEN PATEL
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STATE OF MICHIGAN
COURT OF APPEALS
JEFFREY BROOKSHIRE, Personal
Representative of the Estate of JEANNETTE
BROOKSHIRE, Deceased,
UNPUBLISHED
March 15, 2007
Plaintiff-Appellee,
v
BHARTIBEN PATEL, M.D., PATEL INTERNAL
MEDICINE ASSOCIATES, P.C., KELLY
MANDAGERE, M.D., ANN ARBOR
ENDOCRINOLOGY & DIABETES
ASSOCIATES, P.C., NANCYLEE STIER, M.D.,
ANN ARBOR INPATIENT PHYSICIANS,
P.L.L.C., and ROBERT URBANIC, M.D.,
No. 257214
Washtenaw Circuit Court
LC No. 03-000731-NH
Defendants-Appellants,
and
TRINITY HEALTH—MICHIGAN, d/b/a ST.
JOSEPH MERCY HOSPITAL, f/k/a MERCY
HEALTH SERVICES,
Defendant.
JEFFREY BROOKSHIRE, Personal
Representative of the Estate of JEANNETTE
BROOKSHIRE, Deceased,
Plaintiff-Appellee,
v
BHARTIBEN PATEL, M.D., PATEL INTERNAL
MEDICINE ASSOCIATES, P.C., KELLY
MANDAGERE, M.D., ANN ARBOR
ENDOCRINOLOGY & DIABETES
ASSOCIATES, P.C., NANCYLEE STIER, M.D.,
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No. 257629
Washtenaw Circuit Court
LC No. 03-000731-NH
ANN ARBOR INPATIENT PHYSICIANS,
P.L.L.C., and ROBERT URBANIC, M.D.,
Defendants,
and
TRINITY HEALTH—MICHIGAN, d/b/a ST.
JOSEPH MERCY HOSPITAL, f/k/a MERCY
HEALTH SERVICES,
Defendant-Appellant.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
In these consolidated appeals, defendants appeal by leave granted, challenging a circuit
court order denying their motions for summary disposition pursuant to MCR 2.116(C)(7) (statute
of limitations). We reverse. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
We review de novo the circuit court’s summary disposition ruling.
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
Beaudrie v
Under MCR 2.116(C)(7), summary disposition is proper when a claim is
barred by the statute of limitations. In determining whether summary disposition
was properly granted under MCR 2.116(C)(7), this Court “consider(s) all
documentary evidence submitted by the parties, accepting as true the contents of
the complaint unless affidavits or other appropriate documents specifically
contradict them.” [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004),
quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]
“Whether a period of limitation applies to preclude a party’s pursuit of an action [also]
constitutes a question of law that we review de novo.” Detroit v 19675 Hasse, 258 Mich App
438, 444; 671 NW2d 150 (2003).
The parties dispute whether plaintiff’s provision of notice of his intent to sue defendants,
as required by MCL 600.2912b, tolled the applicable period for filing this wrongful death
medical malpractice action. In Waltz, supra at 648-651, 655, the Michigan Supreme Court held
that under the clear and unambiguous language of MCL 600.5856, the filing of a notice of intent
to sue during the two-year malpractice period of limitation in MCL 600.5805(6) operates to toll
this period, but that the giving of notice does not toll the period in MCL 600.5852, which
constitutes a wrongful death saving period, “an exception to the limitation period” and not a
period of limitation itself. (Emphasis in original). In Mullins v St Joseph Mercy Hosp, 271 Mich
App 503, 509; 722 NW2d 666 (2006), lv pending, a special conflict panel of this Court
concluded that the Supreme Court’s decision in Waltz “applies retroactively in all cases.”
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More recently, in Ward v Siano, 272 Mich App 715; ___ NW2d ___ (2006), slip op at 1-3, lv
pending, another special conflict panel rejected the proposition that “a wrongful death plaintiff
may rely upon equitable tolling to escape the retroactive effect of our Supreme Court’s decision
in Waltz v Wyse.”
In this case, the decedent’s claims accrued at the latest by October 16, 2000, the date of
her death, and thus the two-year period of limitation in MCL 600.5805(6) extended through
October 16, 2002, at the latest. Plaintiff’s appointment as personal representative on January 30,
2001, gave him until January 30, 2003, to commence this action within the wrongful death
saving period. MCL 600.5852. Plaintiff gave notice of his intent to sue defendants on
December 23, 2002, but this notice did not toll the wrongful death saving period pursuant to
MCL 600.5856(c). Waltz, supra at 648-651, 655.1 Consequently, plaintiff’s filing of this action
on July 7, 2003, occurred more than five months after the wrongful death saving period had
expired.
Plaintiff suggests that retroactively applying Waltz violates due process guarantees by
significantly shortening the period of limitation governing this case after he filed the complaint.
Our Supreme Court and this Court have rejected this argument. Waltz, supra at 652 n 14; Farley
v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 576 n 27; 703 NW2d
115 (2005); Ousley v McLaren, 264 Mich App 486, 496; 691 NW2d 817 (2004).
Plaintiff additionally suggests that according to the interpretation of MCL 600.5852 in
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003), the
complaint qualifies as timely by virtue of the appointment of Randall Brookshire as the successor
personal representative of the decedent’s estate on June 21, 2004.2 In McMiddleton v Bolling,
267 Mich App 667, 668; 705 NW2d 720 (2005), this Court “h[e]ld that the appointment of a
successor personal representative cannot revive a complaint that the predecessor personal
representative filed more than two years after being appointed.” The Court distinguished
Eggleston as follows:
In Eggleston, the personal representative died before a complaint was
filed. A successor personal representative was then appointed. The issue was
whether the two-year saving provision began to run from the appointment of the
1
This Court has rejected plaintiff’s contention that his giving of notice within the two-year
period in MCL 600.5852 tolled this wrongful death saving period because he subsequently and
timely filed suit within the three-year time limit also referenced in § 5852. “[T]he three-year
ceiling in the wrongful death saving provision is not an independent period in which to file suit;
it is only a limitation on the two-year saving provision itself. Therefore, the fact that the threeyear ceiling was not yet reached when [the plaintiff] filed suit is irrelevant.” Farley v Advanced
Cardiovascular Health Specialists, PC, 266 Mich App 566, 575; 703 NW2d 115 (2005).
2
Plaintiff raised this claim in the circuit court, but the court did not address it. Although the
issue is unpreserved, this Court nonetheless may address it on appeal because it involves a
question of law. Michigan Twp Participating Plan v Fed Ins Co, 233 Mich App 422, 435-436;
592 NW2d 760 (1999).
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original personal representative or the appointment of the successor personal
representative. Our Supreme Court held that MCL 600.5852 “clearly allows an
action to be brought within two years after letters of authority are issued to the
personal representative. The statute does not provide that the two-year period is
measured from the date the letters of authority are issued to the initial personal
representative.” Id. at 33. Plaintiff argues that according to this decision, she
could have filed a complaint two years after she was appointed successor personal
representative. [Emphasis in original.] However, after being appointed successor
personal representative, she did not file a complaint. . . . The original personal
representative filed the complaint approximately two years and six months after
her appointment. The successor personal representative never filed a complaint.
[Emphasis added.] Thus, Eggleston does not support the conclusion that the
complaint in this case was timely filed.
***
Plaintiff contends that she did not need to file another complaint, because
the previous personal representative had already filed one. However, applying
MCL 600.5852 and the Supreme Court’s ruling in Eggleston, it is clear that a
successor personal representative cannot rely on the untimely filed complaint that
was filed before she was appointed. [McMiddleton, supra at 672-673.]
In light of the instant facts that plaintiff, the original personal representative, untimely
commenced this action, and that Randall Brookshire, the successor personal representative, never
took steps toward filing a second complaint on behalf of the estate, we conclude that Randall
Brookshire’s mere appointment as the successor “cannot revive [the] complaint that the
predecessor personal representative filed more than two years after being appointed.” Id. at 668.
In summary, because the holding in Waltz retroactively applies to this case according to
Mullins, supra at 509, and because this Court in Ward, supra, slip op at 1-3, precluded the
applicability of the equitable or judicial tolling doctrine under the circumstances of this case, the
circuit court erred by denying defendants’ motions for summary disposition pursuant to MCR
2.116(C)(7).
Reversed and remanded for entry of an order granting defendants’ motions for summary
disposition. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
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