ELIZABETH FARLEY V NEVINE M CARP MD
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STATE OF MICHIGAN
COURT OF APPEALS
ELIZABETH FARLEY, Personal Representative
of the Estate of FRANKLIN FARLEY,
FOR PUBLICATION
January 5, 2010
9:00 a.m.
Plaintiff-Appellee,
v
NEVINE M. CARP, JOHN SCHAIRER, D.O.,
ADVANCED CARDIOVASCULAR HEALTH
SPECIALISTS, P.C., and MIRCEA R. CARP,
M.D.,
Nos. 283405 and 284681
Wayne Circuit Court
LC No. 02-237107-NH
Defendants,
and
GARDEN CITY HOSPITAL, OSTEOPATHIC,
Defendant-Appellant.
ELIZABETH FARLEY, Personal Representative
of the Estate of FRANKLIN FARLEY,
Plaintiff-Appellee,
v
NEVINE M. CARP, M.D., JOHN SCHAIRER,
D.O., GARDEN CITY HOSPITAL,
OSTEOPATHIC, and MIRCEA R. CARP, M.D.,
Defendants,
and
ADVANCED CARDIOVASCULAR HEALTH
SPECIALISTS, P.C.,
Defendant-Appellant.
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No. 283418
Wayne Circuit Court
LC No. 02-237107-NH
KIRT WREN, Personal Representative of the
Estate of HIRAM DENT,
Plaintiff-Appellee,
v
SOUTHFIELD REHABILITATION COMPANY,
d/b/a GREAT LAKES REHABILITATION
HOSPITAL, and MOHAMMED S. SIDDIQUI,
D.O.,
No. 283726
Wayne Circuit Court
LC No. 04-425699-NH
Defendants,
and
ST. JOHN RIVERVIEW HOSPITAL,
Defendant-Appellant.
KIRT WREN, Personal Representative of the
Estate of HIRAM DENT,
Plaintiff-Appellee,
v
SOUTHFIELD REHABILITATION COMPANY,
d/b/a GREAT LAKES REHABILITATION
HOSPITAL,
Defendant-Appellant,
and
ST. JOHN RIVERVIEW HOSPITAL and
MOHAMMED S. SIDDIQUI, D.O.,
Defendants.
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No. 283727
Wayne Circuit Court
LC No. 04-425699-NH
LABARON ELLIS and THOMAS J. EDMUNDS,
Copersonal Representatives of the Estate of
SAUNDRA L. EDMUNDS,
Plaintiffs-Appellees,
v
No. 284319
Wayne Circuit Court
LC No. 04-426500-NH
HENRY FORD HEALTH SYSTEM, d/b/a
HENRY FORD HOSPITAL, SACHIN GOEL,
M.D., JOSEPH LeBEL, D.O., and JOHN
FERRARA, M.D.,
Defendants-Appellants.
Advance Sheets Version
Before: SAAD, C.J., and SAWYER and BORRELLO, JJ.
SAWYER, J.
This trio of cases provides us with the opportunity to determine the scope of the
applicability of this Court’s recent decision in Kidder v Ptacin,1 which held that relief from a
judgment was not appropriate where the case had been dismissed in accordance with a directive
of this Court and the appellate process had been concluded. Although originally submitted as
three separate cases, because of the common issue presented in light of Kidder, on our own
motion we consolidated these cases for purposes of argument and decision. In these appeals, we
hold that the Kidder principle also applies where the trial court had previously dismissed a case
and no appeal had been taken and where the trial court had not yet complied with this Court’s
earlier directive.
1
284 Mich App 166; 771 NW2d 806 (2009).
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Our decision in Kidder considered the application of the Supreme Court’s decision in
Mullins v St Joseph Mercy Hosp2 to cases that had been previously decided by this Court under
Waltz v Wyse3 resulting in summary dispositions in favor of the defendants in certain medical
malpractice actions. The Supreme Court’s order in Mullins had reversed this Court’s holding
that Waltz was to be given full retroactive effect. The Supreme Court’s order in Mullins4 held
that Waltz was not to be applied to any action filed after the decision in Omelenchuk v City of
Warren5 in which the saving period had expired within 182 days after the decision in Waltz. In
Kidder, this Court, in a prior unpublished opinion per curiam issued before the Supreme Court’s
order in Mullins, applied the decision in Waltz, concluding that the plaintiff’s suit was not timely,
and reversed and remanded the matter to the trial court with instructions to grant summary
disposition to the defendants.6
The trial court complied with this Court’s directions and
dismissed the case.7 Thereafter, the Supreme Court entered its order in Mullins. Because the
plaintiff in Kidder would have prevailed under the Mullins holding, the plaintiff in Kidder moved
for relief from judgment, which the trial court granted and reinstated the plaintiff’s case.8
The defendants appealed, arguing that, under the law of the case doctrine, the trial court
was obliged to follow this Court’s previous directions to dismiss the case. This Court agreed and
again ordered the trial court to grant summary disposition in favor of the defendants.9
2
480 Mich 948 (2007).
469 Mich 642; 677 NW2d 813 (2004).
4
Mullins, supra at 948.
5
461 Mich 567; 609 NW2d 177 (2000).
6
Kidder, supra at 168-169.
7
Id. at 169.
8
Id.
9
Id. at 171.
3
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The three cases before us present a variation on the facts of Kidder. In each case, we
conclude that Kidder either directly controls the outcome of the case or that at least the reasoning
in Kidder applies and judgment for defendants is appropriate.
Of the three cases, perhaps the easiest to resolve is Wren (Docket Nos. 283726 and
283727), because the procedural facts are essentially identical to Kidder. In both Wren and
Kidder, this Court issued an opinion before the Supreme Court’s order in Mullins, which applied
Waltz retroactively and concluded that the cases were untimely filed.10 Thus, both cases were
concluded at the time the Supreme Court entered its order in Mullins and the plaintiffs in both
cases sought to have their cases reinstated in light of Mullins. In both cases, the trial court
ultimately granted relief from judgment in light of Mullins and ordered the cases reinstated.11
Given that Wren is in the same procedural posture as Kidder, Kidder directly controls the
outcome of Wren. Therefore, we conclude that, in light of Kidder, the trial court erred by
reinstating plaintiff’s cause of action. We vacate the trial court’s order in Wren reinstating this
matter.
The situation in Ellis (Docket No. 284319) is somewhat different from Kidder, but we
nonetheless believe that Kidder directs us to the same result. The difference in Ellis is that
plaintiffs never sought to appeal the trial court’s original decision to dismiss the case in light of
the retroactive application of Waltz. That is, the procedural posture of Ellis at the time that the
Supreme Court entered its order in Mullins was that the trial court had granted defendants’
10
There is one distinction between Wren and Kidder in this regard: in Kidder, the trial court had
ruled in the plaintiff’s favor and the prior appeal was an interlocutory appeal by the defendants
seeking to have the case dismissed, while in Wren the trial court had dismissed the case and
plaintiff appealed to this Court in the prior appeal. But we see no meaningful distinction in this
slightly different procedural posture in the prior appeals.
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motion and dismissed the case, with plaintiffs not taking an appeal from that decision. The
Supreme Court issued its decision in Mullins nearly a year later, prompting plaintiffs to filed
their motion to reinstate the case, which the trial court granted.
Technically speaking, the law of the case doctrine does not apply here because there is
not a decision of a higher court that is now binding on the lower court.12 Despite that fact,
however, it is not tenable that plaintiffs in this case should prevail while the plaintiffs in Wren
and Ellis would lose. In Kidder,13 we made the following observation:
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.
If relief from judgment should not be granted under MCR 2.612(C)(1)(f) where a party sleeps on
their appellate rights by failing to seek leave to appeal in the Supreme Court from an adverse
ruling in this Court, then certainly relief from judgment is not appropriate where the party never
even pursues an appeal from the trial court’s ruling to this Court. To hold otherwise would allow
11
Another similarity of both Kidder and Wren is that in neither case did the plaintiffs seek leave
to appeal in the Supreme Court after losing in this Court.
12
See Kidder, supra at 170.
13
Kidder, supra at 171.
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plaintiffs’ “action to spring back to life because others have availed themselves of the appellate
process.”14
We hold that relief from judgment under MCR 2.612(C)(1)(f) is inappropriate where a
party has not sought appellate review of a trial court’s final order and the basis for relief from
judgment is a subsequent appellate decision in a different case. Accordingly, the trial court in
Ellis erred by granting plaintiffs relief from judgment and reinstating their cause of action. We
vacate that order and reinstate the trial court’s original order dismissing the case with prejudice.
We finally turn to Farley (Docket Nos. 283405, 284681, and 283418), which presents the
most distinct set of facts of this trio of cases. In Farley, there are two significant procedural
differences from Kidder and Wren. First, in Farley, plaintiff did not sit on her appellate rights.
After the adverse decision in this Court, she sought leave to appeal in the Supreme Court, which
denied leave.15 Second, the trial court never complied with this Court’s directions on remand.
That is, in our prior opinion, we directed the trial court to enter an order granting defendants
summary disposition.16 The trial court never complied with that directive. Thus, the trial court
never granted plaintiff relief from judgment after the Supreme Court’s decision in Mullins
because there was no trial court judgment to grant relief from.
We do not believe that either of these distinctions, however, requires a different result.
The fact that the Supreme Court denied leave to appeal means that our earlier decision is now the
final adjudication in this case and may be enforced according to its terms.17 Furthermore, we
14
Kidder, supra at 171.
Farley v Advanced Cardiovascular Health Specialists, PC, 474 Mich 1020 (2006).
16
Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 568-570; 703
NW2d 115 (2005).
17
Detroit v Gen Motors Corp, 233 Mich App 132, 140; 592 NW2d 732 (1998).
15
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cannot endorse a process by which relief can be obtained because the lower court chose to
simply ignore the clear directive of the appellate court, allowing the case to languish until there
is a change in law to justify the result that the lower court would like to apply.18
Simply put, the trial court had no alternative in this case other than to comply with the
direction of this Court in our previous opinion. And once the trial court so complies, as
discussed above, it is precluded from granting relief from judgment under the law of the case
doctrine.
The orders of the trial courts in these cases reinstating these cases are vacated. The
matters are remanded to the respective trial courts with direction to enter orders of summary
disposition in favor of defendants. We do not retain jurisdiction. Costs to defendants.
SAAD, C.J., concurred.
/s/ David H. Sawyer
/s/ Henry William Saad
18
See Cox v Flint Bd of Hosp Managers (On Remand), 243 Mich App 72, 93; 620 NW2d 859
(2000), and Sumner v Gen Motors Corp (On Remand), 245 Mich App 653; 633 NW2d 1 (2001)
(discussing the need for finality in this Court’s judgments).
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