ESTATE OF CYNTHIA LATIMORE V DETROIT MEDICAL CENTERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
SHEILA ELLOUT, as Personal Representative of
the ESTATE OF CYNTHIA LATIMORE,
October 8, 2009
Wayne Circuit Court
LC No. 06-635635-NH
DETROIT MEDICAL CENTER, DETROIT
RECEIVING HOSPITAL and UNIVERSITY
HEALTH CENTER, and CHRISTINA L.
Advance Sheets Version
K. F. KELLY, J. (dissenting.)
I respectfully dissent. I would affirm the trial court’s order granting defendants’ motion
for summary disposition.
At issue is whether plaintiff’s entire suit is barred because she filed her complaint before
the end of the 154/182-day no-suit period of MCL 600.2912b. The trial court granted summary
disposition for defendants because the period of limitations had expired with regard to defendant
Christina L. Coulbeck, R.N. See MCR 2.116(C)(7). It therefore dismissed the claim against
Coulbeck with prejudice and also dismissed the claims against the remaining defendants because
they had been sued on the basis of the theory of vicarious liability. The majority concludes that
this was error, because the appropriate remedy was to dismiss plaintiff’s case against Coulbeck
without prejudice. I disagree because plaintiff’s suit is barred by the statute of limitations. It is
also my view, and my concern, that the majority simply substitutes its opinion for that of the trial
court, rather than analyzing the issue under the appropriate standard of review on appeal.
Therefore, I respectfully dissent.
Because defendants “moved for summary disposition under [MCR 2.116(C)(7)], MCR
2.504(B)(3) applies.” Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 295; 731 NW2d 29
(2007). MCR 2.504(B)(3) provides:
Unless the court otherwise specifies in its order for dismissal, a dismissal
under this subrule or a dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction or for failure to join a party under MCR 2.205,
operates as an adjudication on the merits.
It is clear that under this court rule, a trial court may in its discretion decide whether to dismiss a
party with or without prejudice. As this Court recognized in Rose v Rose, 10 Mich App 233,
236; 157 NW2d 16 (1968):
The reason for the rule is that if a plaintiff does not care enough to
prosecute his action diligently, fairness requires that defendant be allowed to
protect himself from the bother of filing answers to a multiplicity of complaints
for the same claim, by relying upon the dismissal as ending the matter for all time.
This affords plaintiff reasonable and ample opportunity to bring his action and
sustain his claim, while demanding diligence on his part for the protection of the
And, this Court’s review of whether a trial court’s decision under this rule was proper is limited
to determining whether the trial court abused its discretion. Marquette v Village of Fowlerville,
114 Mich App 92, 96; 318 NW2d 618 (1982). Such an abuse occurs only when a trial court’s
decision is not within the range of reasonable and principled outcomes. Maldonado v Ford
Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Here, the trial court dismissed Coulbeck with prejudice, relying on Burton v Reed City
Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), and Holmes v Michigan Capital Med Ctr,
242 Mich App 703; 620 NW2d 319 (2000), where dismissal with prejudice was appropriate
when the period of limitations had expired before the suit was commenced. The trial court made
no mention in its original opinion and order whether its determination was an adjudication on the
merits. Pursuant to MCR 2.504(B)(3), its dismissal operated as an adjudication on the merits.
Moreover, on plaintiff’s motion for reconsideration, the trial court affirmed its original decision,
definitively stating that its initial decision dismissing Coulbeck with prejudice was an
adjudication on the merits. Given the foregoing, and the fact that plaintiff failed to diligently
proceed against Coulbeck, I fail to see how the trial court’s determination was an abuse of
discretion; rather, its decision to dismiss Coulbeck with prejudice because the period of
limitations had expired was squarely within the principled range of outcomes and was consistent
with the court rule. Al-Shimmari, supra at 295.
Furthermore, the fact that the trial court reached this determination does not show, as
plaintiff argues, that it failed to recognize that it had discretion to state in its order that
Coulbeck’s dismissal was not an adjudication on the merits consistent with MCR 2.504(B)(3).
Nor does it indicate that the trial court erroneously believed that it was precluded from making
such a statement. Rather, plaintiff’s brief in support of her motion for reconsideration
specifically directed the trial court to the relevant court rule. Thus, the trial court simply
exercised its discretion to disallow plaintiff’s attempt to further pursue her claims.
I also consider to be unavailing plaintiff’s argument that the trial court erred by denying
her motion to voluntarily dismiss Coulbeck from the suit under MCR 2.504(A)(2).1 The decision
MCR 2.504(A)(2) provides, in relevant part:
whether to grant or deny a voluntary dismissal is, again, within the trial court’s discretion and we
review its decision for an abuse of discretion. McKelvie v Mount Clemens, 193 Mich App 81,
86; 483 NW2d 442 (1992). A trial court should grant a party’s motion for voluntary dismissal
only if no prejudice will result to the defendant. Makuck v McMullin, 87 Mich App 82, 85; 273
NW2d 595 (1978).
Here, plaintiff sought to dismiss Coulbeck from the suit while defendants’ motion for
summary disposition was pending. Had the trial court voluntarily dismissed Coulbeck, it would
have deprived all the other defendants of their entitlement to summary disposition before the trial
court could decide the motion. A voluntary dismissal should not be granted to avoid an
impending adverse decision. See McLean v McElhaney, 269 Mich App 196, 202-203; 711
NW2d 775 (2005) rev’d on other grounds 480 Mich 978 (2007); Rosselott v Muskegon Co, 123
Mich App 361, 375-376; 333 NW2d 282 (1983). Under these circumstances, I cannot conclude
that the trial court abused its discretion by declining to voluntarily dismiss Coulbeck. The trial
court’s decision was certainly within the range of principled outcomes. Maldonado, supra at
Finally, I disagree with the majority that Al-Shimmari is not applicable to the present
matter. The trial court properly considered the case and retroactively applied it to plaintiff’s
lawsuit, contrary to plaintiff’s contention. A question concerning the retroactive application of a
court’s decision presents a question of law that we review de novo. Duggan v Clare Co Bd of
Comm’rs, 203 Mich App 573, 575; 513 NW2d 192 (1994).
Typically, the decisions of this Court and the Michigan Supreme Court are given
retroactive effect, meaning that they are applied to all pending cases in which a challenge has
been raised and preserved. Wayne Co v Hathcock, 471 Mich 445, 484; 684 NW2d 765 (2004).
The courts of this state, however, will depart from this general rule if rare exigent circumstances
exist. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005). In those
matters, a decision will be applied prospectively, but such application is only appropriate if the
decision at issue overrules clear and uncontradicted caselaw. Id. at 587.
In Al-Shimmari, our Supreme Court held that MCR 2.504(B)(3) means that a dismissal
based on the expiration of a period of limitations operates as an adjudication on the merits unless
the court specifies otherwise. Al-Shimmari, supra at 295-296. According to plaintiff, AlShimmari overruled Rogers v Colonial Fed S & L Ass’n, 405 Mich 607; 275 NW2d 499 (1979)
(opinion by WILLIAMS), which in plaintiff’s view held that a dismissal based on expiration of the
Except as provided in subrule (A)(1) [dismissal by stipulation], an action
may not be dismissed at the plaintiff’s request except by order of the court on
terms and conditions the court deems proper.
(b) Unless the order specifies otherwise, a dismissal under subrule (A)(2) is
period of limitations was not an adjudication on the merits. According to plaintiff, when she
filed her complaint in December 2006, Rogers, and unpublished opinions citing it, was the
existing “clear and uncontradicted caselaw” on which she relied. However, the “sole issue” in
Rogers was whether the plaintiff was barred, by res judicata or court rule, from bringing a second
suit when her first suit had been voluntarily dismissed with prejudice. Id. at 613. The Court held
that such a case would not be precluded. Id. Rogers did, however, state in a footnote, “An
accelerated judgment based on the three-year statute of limitations is not an adjudication on the
merits of a cause of action.” Id. at 619 n 5, citing Nordman v Earle Equip Co, 352 Mich 342; 89
NW2d 594 (1958).
This footnote is not the holding of the Rogers Court, but is dicta that had the support of
only three justices. Further, the case upon which this dicta relies for support, Nordman, was
decided before the General Court Rules of 1963, which included the original version of MCR
2.504(B)(3), were even promulgated. Moreover, the Al-Shimmari Court found that the assertion
in footnote 5 is contrary to the plain language of the court rule. Al-Shimmari, supra at 296-297.
And, perhaps most significantly, our Supreme Court has already applied Al-Shimmari
retroactively in Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 418-419; 733 NW2d
755 (2007). Thus, neither Rogers nor the unpublished Court of Appeals cases cited by plaintiff
can be fairly described as clear and uncontradicted caselaw, so that Al-Shimmari should only be
applied prospectively. Accordingly, I would conclude that the trial court did not err by applying
Al-Shimmari retroactively to plaintiff’s case.
The trial court did not err by granting defendants’ motion for summary disposition and
did not abuse its discretion by dismissing plaintiff’s case with prejudice. Accordingly, I dissent.
/s/ Kirsten Frank Kelly