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
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.
-2-
No. 283727
Wayne Circuit Court
LC No. 04-425699-NH
LABARON ELLIS and THOMAS J. EDMUNDS,
Co-Personal 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.
Before: SAAD, P.J., and SAWYER and BORRELLO, JJ.
BORRELLO, J. (dissenting).
I respectfully dissent from the majority’s opinion in these consolidated cases. While I
agree with the majority that we are bound by MCR 7.215(J)(1) to follow Kidder v Ptacin, 284
Mich App 166; 771 NW2d 806 (2009), in Wren (Docket Nos. 283726 and 283727) and Ellis
(Docket No. 284319), because I am of the opinion that Kidder was wrongly decided, I would
declare a conflict under MCR 7.215(J)(2). Furthermore, I disagree with the majority that Kidder
controls the outcome in Farley (Docket Nos. 283405, 284681, and 283418) because Farley is
factually distinguishable from Kidder. Contrary to the result reached by the majority, I would
conclude that the trial court did not abuse its discretion by reinstating plaintiff’s case in Farley.
I believe that the majority’s reliance on Kidder in Farley is misplaced because the facts in
Farley are distinguishable from the facts in Kidder. MCR 2.612(C)(1)(f) authorizes relief from
judgment for “[a]ny other reason justifying relief from the operation of the judgment.” In
Kidder, this Court ruled that MCR 2.612(C)(1)(f) was inapplicable because the plaintiff in that
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case failed to appeal the judgment of this Court. Kidder, supra at 169, 171. In declining to
apply MCR 2.612(C)(1)(f), this Court stated:
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 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. [Kidder,
supra at 171.]
As the majority notes, plaintiff in Farley did not sleep or sit on her appellate rights like
the plaintiff in Kidder. To the contrary, plaintiff in Farley moved for reconsideration in this
Court1 and appealed this Court’s decision to the Supreme Court, which denied leave to appeal.2
Because plaintiff availed herself of the appellate process in Farley, Kidder’s reasoning for
declining to apply MCR 2.612(C)(1)(f) is inapplicable here, and the interests of justice do not
militate against allowing plaintiff to pursue her case. Rather, the interests of justice dictate a
contrary result from that reached by my colleagues in the majority. Based on my review of the
proceedings in the trial court, any reliance on Kidder to reverse the trial court’s reinstatement of
plaintiff’s case in Farley is improper and unjust.
Although plaintiff’s motion following the Supreme Court’s decision in Mullins v St
Joseph Mercy Hosp, 480 Mich 948(2007), was technically a motion to lift a stay rather than a
motion to reinstate the case, the trial court noted on the record that it had not imposed a stay and
treated plaintiff’s motion as a motion to reinstate the case. “‘This Court reviews for abuse of
1
Farley v Carp, unpublished order of the Court of Appeals, entered July 22, 2005 (Docket Nos.
256776, 256799, and 257988).
2
Farley v Advanced Cardiovascular Health Specialists, PC, 474 Mich 1020(2006).
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discretion a trial court’s decision concerning a motion to reinstate an action.’” Kidder, supra at
170, quoting Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197 (2000).
The abuse of discretion standard recognizes “‘that there will be circumstances in which there will
be no single correct outcome; rather, there will be more than one reasonable and principled
outcome.’” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006), quoting
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). “An abuse of discretion occurs
when the decision results in an outcome falling outside the principled range of outcomes.”
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
Unlike the majority, I would conclude that the trial court’s reinstatement of plaintiff’s
case in Farley was not an abuse of discretion. Given the trial court’s authority to relieve a party
from a judgment under MCR 2.612(C)(1)(f) and the fact that plaintiff in Farley availed herself of
the appellate process, I would conclude that Kidder is distinguishable and hold that the trial
court’s reinstatement of plaintiff’s case in Farley did not fall outside the principled range of
outcomes.
/s/ Stephen L. Borrello
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