Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 27, 2007
EULA WASHINGTON, as Personal
Representative of the Estate of Lisa B.
Griffin,
Plaintiff-Appellee,
v No. 130641
SINAI HOSPITAL OF GREATER
DETROIT, d/b/a SINAI-GRACE
HOSPITAL, DETEROIT MEDICAL
CENTER, DR. KUNTA, THOMAS
PISKOROWSKI, D.O., and DR. AL-
SAYAD,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
This medical malpractice case presents the question whether a successor
personal representative of a decedent’s estate is barred from filing a subsequent
complaint by the doctrine of res judicata when the initial personal representative
filed a complaint that was involuntarily dismissed. The Court of Appeals held that
the successor representative’s complaint was not barred by res judicata because a
grant of summary disposition on statute of limitations grounds in the first action
was not an adjudication on the merits. The Court of Appeals, however,
overlooked MCR 2.504(B)(3), which states that, unless the court otherwise
specifies in its order for dismissal, an involuntary dismissal, “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.” Under the plain language of MCR
2.504(B)(3), the dismissal of the initial personal representative’s untimely
complaint was an adjudication on the merits. Because all the elements of res
judicata have been satisfied, plaintiff’s claims are barred. Accordingly, we reverse
the Court of Appeals judgment and reinstate the trial court’s order granting
summary disposition for the defendants.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
The decedent, Lisa Griffin, arrived at defendant Sinai Hospital of Greater
Detroit complaining of shortness of breath on February 28, 2000. On March 1,
2000, Lisa Griffin died of cardiac arrest, allegedly as a result of defendants’ failure
to administer intravenous antibiotics. Decedent’s brother, David Griffin, was
appointed personal representative of her estate on March 16, 2000, which meant
that the two-year saving provision would expire March 16, 2002.1 David Griffin
served defendants with a notice of intent to file suit on February 7, 2002, which
1
MCL 600.5852.
2
tolled the period of limitations until August 9, 2002, with 21 days remaining.2
David Griffin, however, did not initiate a wrongful death, medical malpractice
action against defendants until September 25, 2002. In that action, the trial court
granted summary disposition to defendants under MCR 2.116(C)(7), ruling that
Griffin filed his complaint after the period of limitations had expired and more
than two years after the letters of authority were issued. Griffin did not appeal the
trial court’s decision.
Almost a year later, on August 26, 2003, plaintiff Eula Washington,
decedent’s mother, was appointed successor personal representative of decedent’s
estate. Relying on the wrongful death saving provision, MCL 600.5852, and this
Court’s decision in Eggleston v Bio-Medical Applications of Detroit, Inc, 468
Mich 29; 658 NW2d 139 (2003), plaintiff initiated the instant wrongful death
action against defendants, which was identical to the first action. Defendants
moved for summary disposition on the ground that plaintiff’s suit was barred by
res judicata. The trial court granted defendants’ motion, concluding that
Eggleston, supra, did not preclude the application of res judicata.
The Court of Appeals reversed in an unpublished opinion.3 The Court
stated that the wrongful death saving provision permitted a successor personal
2
MCL 600.5856(c).
3
Washington v Sinai Hosp of Greater Detroit, unpublished opinion per
curiam of the Court of Appeals, issued December 1, 2005 (Docket No. 253777).
3
representative to bring a wrongful death action within two years of the issuance of
letters of authority and within three years after the period of limitations has run.
The Court further held that, under Eggleston, supra, the two-year saving period for
the successor personal representative does not commence upon the issuance of
letters of authority to the initial personal representative. Finally, although
summary disposition usually operates to resolve a matter on the merits, the Court
held that res judicata did not govern the case because a dismissal on the basis of
the expiration of the period of limitations does not constitute an adjudication on
the merits. The Court of Appeals cited several cases in support of this latter
proposition.4
Defendants sought leave to appeal in this Court. We granted defendants’
application, ordering the parties to brief the following questions: (1) whether a
successor personal representative is entitled to his own two-year saving period in
which to file a complaint under MCL 600.5852 if the first personal representative
served a full two-year term, and (2) whether a subsequent complaint filed by a
successor personal representative is barred by res judicata and MCR 2.116(C)(7)
or MCR 2.504(B)(3) if the first personal representative filed a complaint.5 We
hold that, because the trial court’s involuntary dismissal of the initial personal
4
Rogers v Colonial Fed S&L Ass’n, 405 Mich 607; 275 NW2d 499 (1979);
Nordman v Earle Equip Co, 352 Mich 342; 89 NW2d 594 (1958); Ozark v Kais,
184 Mich App 302; 457 NW2d 145 (1990).
5
475 Mich 909 (2006).
4
representative’s wrongful death suit operates as an adjudication on the merits
under MCR 2.504(B)(3), plaintiff’s claims were properly dismissed on the basis of
res judicata. In light of this holding, it is unnecessary to decide whether a
successor personal representative is entitled to his own two-year saving period
after the first personal representative served a full two-year term but failed to file a
claim within that time.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision with regard to a motion for
summary disposition under MCR 2.116(C)(7). Bryant v Oakpointe Villa Nursing
Ctr, Inc, 471 Mich 411, 419; 684 NW2d 864 (2004). We also review de novo
questions of statutory interpretation. Ayar v Foodland Distributors, 472 Mich
713, 715; 698 NW2d 875 (2005). Additionally, the application of a legal doctrine,
such as res judicata, presents a question of law that we review de novo. Pierson
Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153
(1999).
III. LEGAL ANALYSIS
First, we emphasize that we do not here decide the threshold question
whether a successor personal representative is entitled to her own two-year period
to file suit if the original personal representative has served a full two-year period.
We decline to address this question because res judicata nonetheless bars plaintiff
from commencing this action. This Court has held:
5
The doctrine of res judicata is employed to prevent multiple
suits litigating the same cause of action. The doctrine bars a second,
subsequent action when (1) the prior action was decided on the
merits, (2) both actions involve the same parties or their privies, and
(3) the matter in the second case was, or could have been, resolved
in the first. Sewell v Clean Cut Mgmt, Inc, 463 Mich 569, 575; 621
NW2d 222 (2001). This Court has taken a broad approach to
the doctrine of res judicata, holding that it bars not only claims
already litigated, but also every claim arising from the same
transaction that the parties, exercising reasonable diligence, could
have raised but did not. Dart v Dart, 460 Mich 573, 586; 597 NW2d
82 (1999). [Adair v Michigan, 470 Mich 105, 121; 680 NW2d 386
(2004).]
Therefore, we must consider these three elements of res judicata in turn.
In the present case, the Court of Appeals held that the prior action had not
been decided on the merits because “a grant of summary disposition on grounds
that the statute of limitation has expired does not constitute an adjudication on the
merits of a cause of action.” Washington v Sinai Hosp of Greater Detroit,
unpublished opinion per curiam of the Court of Appeals, issued December 1, 2005
(Docket No. 253777), slip op at 2, citing Rogers v Colonial Fed S&L Ass’n, 405
Mich 607, 619 n 5; 275 NW2d 499 (1979), Nordman v Earle Equip Co, 352 Mich
342 346; 89 NW2d 594 (1958), and Ozark v Kais, 184 Mich App 302, 308; 457
NW2d 145 (1990). The reliance by the Court of Appeals on Rogers, however, is
misplaced. This Court recently overruled Rogers in Al-Shimmari v Detroit
Medical Ctr, 477 Mich 280; 731 NW2d 29 (2007), holding that Rogers not only
has been superseded by the current court rules, but also that it was incorrectly
decided under the then-existing GCR 1963, 504.2, which was substantially similar
to the current MCR 2.504(B)(3).
6
The current version of MCR 2.504(B) provides, in pertinent part:
(1) If the plaintiff fails to comply with these rules or a court
order, a defendant may move for dismissal of an action or a claim
against that defendant.
* * *
(3) 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.
In the first action, defendants were granted summary disposition under
MCR 2.116(C)(7), because the initial personal representative failed to file suit
within the period of limitations. Plaintiff argues that, under MCR 2.504(B)(3), the
only “merits” decided in the first action are whether the initial personal
representative timely filed his action. MCR 2.504(B)(3), however, does not
distinguish between the grounds for a dismissal. Rather, subrule B(3) plainly
states that “a dismissal under this subrule or a dismissal not provided for in this
rule . . . operates as an adjudication on the merits.” In the absence of any language
in an order of dismissal limiting the scope of the merits decided, the court rule
plainly provides that the order operates as an adjudication of the entire merits of a
plaintiff’s claim. The trial court’s dismissal of the case was, therefore, an
involuntary dismissal under MCR 2.504(B)(1). Moreover, the trial court did not
specify that its order was without prejudice. Also, the trial court’s order in the
first action was not “a dismissal for lack of jurisdiction or for failure to join a party
under MCR 2.205.” Consequently, the decision in the first action was an
7
adjudication on the merits of the initial personal representative’s claims, not just
on the issue whether he timely filed his claims.
The third requirement for the application of res judicata is that “the matter
in the second case was, or could have been, resolved in the first.” Adair, supra at
121. Plaintiff argues that the issue whether a successor personal representative has
her own two-year saving period could not have been resolved in the first case
because the successor personal representative had not been appointed at that time.
As stated in Adair, however, this Court uses a transactional test to determine if the
matter could have been resolved in the first case. Id. at 123. As this Court
explained in Adair:
“The ‘transactional’ test provides that ‘the assertion of
different kinds or theories of relief still constitutes a single cause of
action if a single group of operative facts give rise to the assertion of
relief.’” [Id. at 124 (citations omitted in original).]
“Whether a factual grouping constitutes a ‘transaction’ for purposes of res
judicata is to be determined pragmatically, by considering whether the facts are
related in time, space, origin or motivation . . .” Adair, supra at 125. See also
Reid v Thetford Twp, 377 F Supp 2d 621, 627 (ED Mich, 2005); Banks v LAB
Lansing Body Assembly, 271 Mich App 227, 230 (2006). Because plaintiff’s
complaint is identical to that which was filed in the first action, the identical
operative facts now support her medical malpractice claim. Therefore, the third
res judicata requirement is met because the matter asserted in the second suit was
raised in the first.
8
The application of the wrongful death saving provision, MCL 600.5852,
does not affect this analysis. Although § 5852 allows a personal representative to
bring an action in her own name, the legal right she represents belongs to the
estate, and her claim must be brought on behalf of the estate. Plaintiff does not
have her own legal right to bring a wrongful death claim against defendant.
Hence, the only factual condition that cannot be mirrored in the original suit is the
name representing the estate on the complaint. The name on the complaint in the
second action, however, is not an “operative fact” because it represents the same
interest as that represented in the first action. Rather, the “operative facts” here
are those underlying the estate’s claim for medical malpractice. Accordingly,
plaintiff’s claim is not fundamentally different from her predecessor’s claim,
which relied on the same operative facts.
Finally, with regard to the second res judicata requirement, plaintiff is in
privity with the initial personal representative. We held in Adair that “[t]o be in
privity is to be so identified in interest with another party that the first litigant
represents the same legal right that the later litigant is trying to assert.” Id. at 122.
Plaintiff cites Phinisee v Rogers, 229 Mich App 547; 582 NW2d 852
(1998), for the proposition that the familial relationship between a mother and
child does not put them in privity with one another. In Phinisee, the Court of
Appeals concluded that the doctrine of res judicata did not bar the plaintiff child’s
paternity action against the defendant, despite the earlier dismissal of the
plaintiff’s mother’s paternity action against the same defendant. Id. at 554.
9
Plaintiff’s reliance on Phinisee, however, is misplaced. In concluding that the
mother and child in Phinisee were not in privity, the Court relied on its own
conclusion that “[a]t some point, the law must recognize the fact that a child’s
interests in paternity litigation are much greater than the mother’s interest in
continued support.’” Id. at 552, quoting Spada v Pauley, 149 Mich App 196, 205
n 6; 385 NW2d 746 (1986).6 The Court declined to apply res judicata to the
plaintiff’s claims because she did not represent the same legal interest as her
mother in the first action, and thus, was not in privity with her.
In this case, both plaintiff and the initial personal representative were
representing the same legal entity–namely, the estate—and prosecuting the estate’s
cause of action against defendants for malpractice. The familial relationship
between plaintiff and the initial personal representative is, therefore, irrelevant.
Because plaintiff represents the same legal right that was represented by the initial
personal representative, she is in privity with the initial personal representative.7
Thus, all three requirements for the application of res judicata have been
met in this case. Moreover, while we expressly do not decide whether a successor
personal representative is entitled to her own two-year saving period where the
original personal representative served a full two-year period, we note that nothing
6
While we make no pronouncement on the correctness of this statement,
we note that Phinisee is further distinguishable from the present case because in
Phinisee no final order was entered in the first action. Phinisee, supra at 550-551.
7
See MCL 600.2922; Shenkman v Bragman, 261 Mich App 412, 415-416;
682 NW2d 516 (2004).
10
in MCL 600.5852 precludes the application of res judicata in this case, even if we
were to interpret this provision in plaintiff’s favor. Accordingly, we reverse the
judgment of the Court of Appeals and reinstate the trial court’s order granting
summary disposition in favor of defendants.
Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
Cavanagh and Kelly, JJ. We concur in the result only.
Michael F. Cavanagh
Marilyn Kelly
11