Order Michigan Supreme Court
Lansing, Michigan
April 9, 2008 Clifford W. Taylor,
Chief Justice
134445-46 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
ERIC A. BRAVERMAN, Successor Personal Robert P. Young, Jr.
Stephen J. Markman,
Representative of the Estate of Patricia Swann, Justices
Deceased,
Plaintiff-Appellee,
SC: 134445-46
v COA: 264029, 264091
Wayne CC: 05-502345-NH
GARDEN CITY HOSPITAL, a/k/a GARDEN
CITY HOSPITAL, OSTEOPATHIC,
Defendant,
and
JOHN R. SCHAIRER, D.O., GARY
YASHINSKY, M.D., ABHINA V. RAINA, M.D.,
and PROVIDENCE HOSPITAL AND MEDICAL
CENTERS, INC.,
Defendants-Appellants.
_________________________________________/
By order of September 26, 2007, we granted leave to appeal the June 5, 2007
judgment of the Court of Appeals conflict panel. Having considered the briefs and
having heard oral arguments on January 8, 2008, we AFFIRM the judgment of the Court
of Appeals conflict panel. Plaintiff initially contends that Mullins v St Joseph Mercy
Hosp, 741 NW2d 300 (2007), saves her complaint. Mullins, however, does not apply to
this case because the savings period did not expire “between the date that Omelenchuk [v
City of Warren, 461 Mich 567 (2000)] was decided and within 182 days after Waltz [v
Wyse, 469 Mich 642 (2004)] was decided.” Id. at 300-301. Nevertheless, plaintiff’s
complaint, filed by the successor personal representative within two years of his
appointment, was timely under Eggleston v BioMedical Applications of Detroit, Inc, 468
2
Mich 28; 658 NW2d 139 (2003).1 Moreover, plaintiff, as successor personal
representative, may rely on the notice of intent filed by the previous personal
representative because the office of personal representative is a “person” under MCL
600.2912b. Res judicata does not bar plaintiff’s complaint because no lawsuit filed prior
to the present case was dismissed with prejudice. Moreover, the subsequent lawsuit was
dismissed solely because the present lawsuit was pending. Washington v Sinai, 478 Mich
412; 733 NW2d 755 (2007).
1
Defendants argue that Lindsay v Harper Hospital, 455 Mich 56 (1997), should apply.
However, Lindsay relied on the Revised Probate Code, and in particular on then-current
MCL 700.179, which indicated that a temporary personal representative who was
reappointed personal representative “shall be accountable as though he were the personal
representative from the date of appointment as temporary personal representative.”
Lindsay, supra at 66. After Lindsay was decided, the Revised Probate Code was repealed
and replaced by the Estates and Protected Individuals Code. MCL 700.8102(c). The
Estates and Protected Individuals Code does not contain a provision similar to MCL
700.179. Therefore, the holding of Lindsey, which relied on this statutory provision, no
longer controls.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 9, 2008 _________________________________________
t0402 Clerk