Farley v. Carp.Wren

• Decision Date: 05 January 2010
• Docket Number: 284681.,283418,283727,Docket No. 283405,283726,284319
• Citation: 782 N.W.2d 508,287 Mich.App. 1
• Parties: FARLEYv.CARP.Wrenv.Southfield Rehabilitation Company.Ellis v.Henry Ford Health System.
• Court: Court of Appeal of Michigan — District of US

287 Mich.App. 1

782 N.W.2d 508

FARLEY

v.CARP.

Wren

v.Southfield Rehabilitation Company.

Ellis v.Henry Ford Health System.

Docket Nos. 283405, 283418, 283726, 283727, 284319, 284681.

Court of Appeals of Michigan.

Submitted July 15, 2009, at Detroit.

Decided Jan. 5, 2010, at 9:00 a.m.

McKeen & Associates, P.C. (by Euel W. Kinsey), Detroit, for Elizabeth Farley.

Mindell, Malin, Kutinsky, Stone & Blatnikoff (by Glenn H. Oliver) for Kirt Wren.

Mark Granzotto, P.C. (by Mark R. Granzotto), Royal Oak, and The Thurswell Law Firm (by Judith A. Susskind), Southfield, for Labaron Ellis and Thomas J. Edmunds.

Plunkett Cooney (by Robert G. Kamenec), Bloomfield Hills, for Advanced Cardiovascular Health Specialists, P.C.

Feikens, Stevens, Kennedy & Galbraith, P.C. (by Jeffrey Feikens), Detroit, for Garden City Hospital, Osteopathic.

Merry, Farnen & Ryan, P.C. (by Cynthia E. Merry and John J. Schutza), Saint Clair Shores, for St. John Riverview Hospital.

Ramar & Paradiso, P.C. (by John J. Ramar), Troy, for Southfield Rehabilitation Company.

Ramar & Paradiso, P.C. (by Anthony J. Paradiso and Carmine G. Paterra), Troy, for Henry Ford Health System and others.

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.

Our decision in Kidder considered the application of the Supreme Court's decision in Mullins v. St. Joseph Mercy Hosp.² 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

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' 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 N.W.2d 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 N.W.2d 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 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 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.

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....