AUDREY CHERNOFF V SINAI HOSPITAL OF GREATER DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
AUDREY CHERNOFF, Personal Representative
of the Estate of JANIS CHERNOFF SACHS,
Deceased,
UNPUBLISHED
March 22, 2002
Plaintiff-Appellee,
v
No. 228014
Wayne Circuit Court
LC No. 99-929550-NH
SINAI HOSPITAL OF GREATER DETROIT,
a/k/a SINAI HOSPITAL and THE DETROIT
MEDICAL CENTER,
Defendants-Appellants.
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Defendants Sinai Hospital of Greater Detroit and The Detroit Medical Center
(defendants) appeal by leave granted the order denying their motion for summary disposition
brought pursuant to MCR 2.116(C)(5) and (7) in this wrongful death medical malpractice action.
Defendants contend that they were entitled to summary disposition because plaintiff did not have
the legal capacity to bring suit because the letter of authority appointing her as personal
representative had expired before she filed the notice of intent and the complaint.
The decedent died on September 29, 1995, while she was a patient at Sinai Hospital.
Plaintiff was appointed personal representative of the decedent’s estate on April 23, 1997. The
letter of authority appointing plaintiff as personal representative expired on June 18, 1998, and
plaintiff was discharged as personal representative on September 22, 1998.
On April 16, 1999, plaintiff filed a notice of intent to sue and thereafter filed a complaint
on September 17, 1999. The filing would have been within the statutory period, which
defendants contend expired on September 24, 1999,1 provided plaintiff had remained the
1
Ordinarily, the statute of limitations would have expired on April 23, 1999, or two years after
plaintiff was first appointed personal representative. Because plaintiff filed a notice of intent on
April 16, 1999, the limitation period was tolled under MCL 600.5856(d) until September 24,
1999.
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personal representative.2 Defendants moved for summary disposition on February 9, 2000,
asserting that plaintiff’s authority as personal representative had expired before she filed the
notice of intent and the complaint and thus she had no authority to file suit.
On February 24, 2000, plaintiff filed a petition to reinstate letters of authority nunc pro
tunc, which the probate court granted on March 15, 2000. On May 31, 2000, the Wayne Circuit
Court denied defendants’ motion for summary disposition. The circuit court relied on the
relation-back doctrine to hold that the probate court’s order related back to the date of the filing
of the complaint, avoiding the bar of the statute of limitations. We agree and affirm.
Pursuant to MCL 600.2922(2), a wrongful death action must be brought by and in the
name of the personal representative. Smith v Henry Ford Hosp, 219 Mich App 555, 557-558;
557 NW2d 154 (1996). The pivotal issue presented is whether a plaintiff can have reasonable
belief in his or her authority to file suit as a personal representative when the estate is closed and
the letters of authority have expired.3 Defendant relies primarily on Fisher v Volkswagenwerk
Atkiengesellschaft, 115 Mich App 781; 321 NW2d 814 (1982).4 The Fisher plaintiffs brought a
wrongful death suit as personal representatives of the decedents, their parents, after the estates
had been closed and their authority as personal representatives had expired. The defendants
moved for summary disposition, arguing that the plaintiffs lacked the capacity to sue. The
probate court then reopened the estates and reestablished the plaintiffs as personal
representatives. The trial court permitted the order to relate back. Id. at 783.
This Court acknowledged in Fisher that where a validly appointed personal
representative institutes a wrongful death action under the mistaken belief that she has the
authority, yet later discovers her error and procures the proper authorization by probate order
2
The statute of limitations had not expired on the claim provided plaintiff had the authority to
file suit.
3
This Court has applied the relation-back doctrine in several other cases. For example, in Osner
v Boughner, 152 Mich App 744; 394 NW2d 411 (1986), the Court held that a misrepresentation
in good faith will not bar the application of the relation-back doctrine. In Wieczorek v
Volkswagenwerk, 731 F2d 309 (CA 6, 1984), the Court held that the appointment of an
administrator after the statute of limitations expired relates back to the filing of a wrongful death
suit if at the time the suit was filed the plaintiff reasonably believed he had authority to bring suit
as administrator. In Castle, supra, the Court held that the probate court order granting personal
representative status to the plaintiff could relate back to the complaint. In Doan v Chesapeake &
O R Co, 18 Mich App 271; 171 NW2d 27 (1969), the Court held that the trial court should have
granted the plaintiff-widow’s request to amend her complaint as personal representative to relate
back to the original complaint.
4
The other cases cased by defendants are distinguishable from the issue in the present case; that
is, whether plaintiff had a reasonable belief that she was the personal representative so as to
permit the probate order to relate back to the filing of her complaint. For example, in Turner v
Mercy Hosp & Health Services, 210 Mich App 345; 533 NW2d 365 (1995), the issue was not the
relation-back doctrine, but whether the statute of limitation was tolled while the personal
representative’s letters of authority were suspended because of the personal representative’s
negligence. Likewise, in Smith, supra, the issue was whether the medical malpractice tort reform
would apply, not the relation-back doctrine.
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after the statute of limitations expires, the probate order will relate back to the complaint such
that the action is timely. Id. at 785-786. However, based on the Court’s finding that the
plaintiffs “clearly knew that their tenure as coadministrators ended when the estates were
closed,”5 the Court held that the plaintiffs had misrepresented their capacity to sue under the
wrongful death act when they filed suit and therefore the subsequent reopening of the decedent’s
estate after the limitations period had expired did not relate back to the filing of the lawsuit. Id.
at 786. Relying on Fisher, defendant suggests that where an estate is closed and letters of
authority have expired a plaintiff cannot, as a matter of law, have a reasonable belief in his or her
authority to institute a lawsuit on behalf of the estate.6
Fisher, however, is not so limited. In Fisher, the Court specifically held that, “Clearly,
these plaintiffs knew that their tenure as coadministrators ended when the estates were closed in
1978.” The opinion, however, does “not reveal whether the plaintiffs’ knowledge that their
tenure as administrators had expired was imputed to them from the closing of the estates or
whether there was some other basis for their knowledge.” Saltmarsh v Burnard, 151 Mich App
476, 489; 391 NW2d 382 (1986). This Court has followed Fisher once, in Warren v Howlett,
148 Mich App 417; 383 NW2d 636 (1986), where it held that the plaintiff-father’s first suit was
barred because the plaintiff, an attorney, should have known that he was not able to bring suit
without having been appointed personal representative.
In Saltmarsh, supra, the decedent’s widow filed a legal malpractice claim arising out of a
wrongful death matter after the estate had been closed. After the defendants moved for summary
disposition on the basis that the plaintiff-widow lacked capacity to sue, the probate court
5
The facts on which the Court based its finding that the plaintiffs clearly knew that their tenure
as coadministrators had ended when the estates were closed are not disclosed in the opinion.
6
In the Fisher dissent, Judge Cynar opined that the trial court correctly applied the doctrine of
relation back to the reappointment of the plaintiffs as coadministrators of the estates of the
decedents. Id. at 787. Judge Cynar explained:
I would find, as did the trial court, that Castle v Lockwood-MacDonald Hospital,
40 Mich App 597; 199 NW2d 252 (1972), provides ample authority to allow the
application of the doctrine of relation back in the instant case. While it is true that
Castle presents a stronger case than the one at bar, the instant case satisfies the
substantive requirements for allowing the relation back. Suit was filed against
defendants before the period of limitations had run, thereby putting defendants on
notice that they would have to defend against the claims. Plaintiffs brought suit
on behalf of the estates. The trial court found that plaintiffs did not act in bad
faith, and the only defect in plaintiffs’ action was the fact that they had ceased
being the coadministrators of the estates by reason of the closing of those estates.
Castle acknowledges that relation back has been applied where the parties were
not appointed until after the period of limitations had run. Id., 603. The instant
case is one where a valid claim should not be defeated by legal technicalities. Id.,
604.
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reopened the estate and reappointed the plaintiff as personal representative. The trial court
declined to apply the relation-back doctrine and granted the defendant’s motion. Id. at 479-482.
On appeal, this Court found that the relation back doctrine was applicable. The Court
distinguished Fisher, supra, because the Fisher opinion “did not reveal whether [the plaintiff’s
knowledge that their tenure as administrators had expired was imputed] to them from the closing
of the estates or whether there was some other basis for their knowledge.” Id. at 489. In
Saltmarsh, the record was not clear whether the plaintiff was aware of her discharge as personal
representative of her husband’s estate. Consequently, the Court held that “an appointment as
administrator after the period of limitations has expired relates back to the filing of suit if, at the
time the suit was filed, the plaintiff holds a good faith reasonable belief that he has authority to
bring suit as administrator, provided that the defendant is not prejudiced by the application of the
relation-back doctrine in such situations. Id. at 491. The Court observed that application of the
relation-back doctrine should be done on a case-by-case basis. Id. This Court noted that justice
would not be served by using a legal technicality to preclude a valid claim where the plaintiff
was acting in good faith with a reasonable belief that he or she had authority, provided the
defendant was not prejudiced. Id.
This case is more akin to Saltmarsh than to Fisher. In Fisher, the plaintiffs were credited
with the knowledge that their tenure as coadministrators had ended. Id. at 786. In contrast,
plaintiff stated in her affidavit that the attorneys she initially retained “at no time” told her that
her authority as personal representative for the estate had expired and, based on a letter from
those attorneys, she “assumed that [she] was still the personal representative, that the estate was
still open, and that [she] could pursue a lawsuit.” Further, the underlying reason behind the
motion for summary disposition was plaintiff’s untimely reappointment as personal
representative, not her failure to file her claim within the statutory period. Defendants have not
shown that they were prejudiced by the fact that plaintiff’s letter of authority had expired. There
is no indication that plaintiff acted other than in good faith, mistakenly believing herself as
having the legal authorization to institute the lawsuit even though her letter of authority had
expired. Under these circumstances, we conclude that the doctrine of relation back applies.
Affirmed.
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
/s/ Michael T. Talbot
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