LORI KIDDER V PHILIP C PTACIN MDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
LORI KIDDER, f/k/a LORI STEEB, Personal
Representative of the ESTATE OF SHELDON
June 2, 2009
Calhoun Circuit Court
LC No. 2002-004548-NH
PHILIP C. PTACIN, M.D., and DAYONE
Advance Sheets Version
Before: Wilder, P.J., and Meter and Servitto, JJ.
Defendants appeal by leave granted the trial court’s order reinstating this medical
malpractice, wrongful death action. We reverse and remand to the trial court with instructions to
grant summary disposition in favor of defendants. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
In an earlier appeal involving this litigation, this Court’s opinion presented a concise
statement of the pertinent facts:
Decedent (DOB 5-3-00) died on May 16, 2000 after receiving treatment
Plaintiff, decedent’s mother, was appointed personal
representative of decedent’s estate, and letters of authority were issued to her on
September 21, 2000. On May 3, 2002, plaintiff filed a notice of intent (NOI) to
file a medical malpractice action, as required by MCL 600.2912d. During the
time period relevant to this case, the filing of a NOI tolled the statute of
limitations for 182 days. Plaintiff filed suit alleging medical malpractice on
November 19, 2002.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7),
arguing that plaintiff’s complaint was barred by the statute of limitations because
it was filed more than two years after the date of the alleged malpractice, and no
saving[ ] provision applied. Defendants relied on Waltz v Wyse, 469 Mich 642,
650; 677 NW2d 813 (2004), in which the Supreme Court held that the tolling
period provided for in MCL 600.5856(d) did not apply to the saving[ ] provision
in MCL 600.5852. The trial court denied the motion, concluding that Waltz,
supra, did not apply retroactively to bar plaintiff’s action. Subsequently, the trial
court entered an order staying proceedings pending defendants’ appeal of the
order denying summary disposition. Since the entry of the trial court’s order, this
Court has held that the holding in Waltz, supra, applies retroactively. Mullins v St
Joseph Mercy Hosp, 271 Mich App 503; 722 NW2d 666 (2006).
Decedent died on May 16, 2000; thus, the cause of action accrued on that
date. Plaintiff’s letters of authority were issued on September 21, 2000. Plaintiff
did not file suit on or before either May 16, 2002, the date the two-year statute of
limitations applicable to medical malpractice actions expired, or September 21,
2002, the date the two-year saving provision expired. [Unpublished opinion per
curiam of the Court of Appeals, issued January 23, 2007 (Docket No. 257703),
slip op at 1-2 (some citations omitted).]
This Court concluded that in light of its resolution of the conflict presented in Mullins,
applying Waltz retroactively, plaintiff’s suit was not timely and was thus barred by the statute of
limitations. Id. at 2. This Court additionally held that judicial tolling was not available to save
the cause of action. Id. at 2-3. Accordingly, this Court reversed and remanded this case to the
trial court with instructions to grant summary disposition in favor of defendants. Id. at 3.
The trial court complied with this Court’s directive. After the trial court’s dismissal of
the case, this Court’s conflict resolution decision in Mullins was reversed. Our Supreme Court
held, “this Court’s decision in Waltz . . . does not apply to any causes of action filed after
Omelenchuk v City of Warren, 461 Mich 567 [609 NW2d 177] (2000), was decided in which the
saving period expired, i.e., two years had elapsed since the personal representative was
appointed, sometime between the date that Omelenchuk was decided and within 182 days after
Waltz was decided.” Mullins v St Joseph Mercy Hosp, 480 Mich 948, 948 (2007) (order on
With this new development in caselaw suggesting that Waltz need not be applied to
claimant in her circumstances, plaintiff moved to reinstate her case in the trial court. Plaintiff
cited MCR 2.612(C)(1)(e) (authorizing relief from judgment where “a prior judgment on which
it is based has been reversed or otherwise vacated”), and (f) (“[a]ny other reason justifying relief
from the operation of the judgment”). The trial court granted the motion while stating its
expectation that the issue would ultimately be decided by the appellate courts.
In this appeal, defendants argue that the trial court erred in reinstating the case. They
state that plaintiff’s failure to appeal the judgment of this Court, ordering summary disposition in
See MCL 600.5805(6).
See MCL 600.5852.
favor of defendants, made that decision the law of the case, which the trial court was obliged to
follow. We agree.
“This Court reviews for abuse of discretion a trial court’s decision concerning a motion to
reinstate an action.” Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197
(2000). A court “by definition abuses its discretion when it makes an error of law.” Koon v
United States, 518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996). See also People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
“Under the law of the case doctrine, an appellate court ruling on a particular issue
binds . . . all lower tribunals with regard to that issue. The law of the case mandates that a court
may not decide a legal question differently where the facts remain materially the same.” Webb v
Smith (After Second Remand), 224 Mich App 203, 209; 568 NW2d 378 (1997) (citations
In this case, MCR 2.612(C)(1)(e) does not apply because this Court’s decision ordering
the grant of summary disposition in favor of defendants has not been reversed or otherwise
vacated; its holding has been overruled by subsequent caselaw. There is an important
Reversing or vacating a decision changes the result in the specific case before an
appellate court. On the other hand, a decision to overrule a particular rule of law affects not only
the specific case before the appellate court, but also future litigation. A decision to overrule is an
appellate court’s declaration that a rule of law no longer has precedential value. See Sumner v
Gen Motors Corp (On Remand), 245 Mich App 653, 665; 633 NW2d 1 (2001). However, an
appellate court’s pronouncement that a rule of law no longer applies does not change the result of
an effective judgment. Id. In the instant case, this Court’s decision was in effect, as the time for
filing an application with our Supreme Court had lapsed. MCR 7.215(F)(1)(a). Accordingly, the
fact that this Court’s decision in Mullins was overruled, did not implicate this Court’s earlier
decision in the instant case.
MCR 2.612(C)(1)(f) is likewise inapplicable. Just as “equity aids the vigilant, not those
who sleep on their rights,” Falk v State Bar of Michigan, 411 Mich 63, 113 n 27; 305 NW2d 201
(1981) (Ryan, J., joined by Moody and Fitzgerald, JJ.) (quotation marks and citations omitted),
so does the appellate process. See Lothian v Detroit, 414 Mich 160, 175; 324 NW2d 9 (1982)
(denying relief to an appellant who, “wholly apprised of the facts which constituted his cause of
action, chose to sleep on his rights until a subsequent appellate court decision roused him to
action”). The instant defendants were neither parties to Mullins nor among those similarly
situated parties whose cases were pending in the appellate process. Instead, as earlier indicated,
the dismissal of plaintiff’s case had become final (an effective judgment). The interests of
justice truly militate against allowing a defeated party’s action to spring back to life because
others have availed themselves of the appellate process.
Furthermore, MCR 2.612 envisions a court relieving a party from its own judgment, not
the judgment of a higher authority. No provision of the rule allowed the trial court in this case to
relieve plaintiff from the judgment embodied in this Court’s January 23, 2007, opinion.
For these reasons, we reverse the result below and again remand this case to the trial
court with instructions to grant summary disposition in favor of defendants.
Reversed and remanded. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Deborah A. Servitto