McNeil v. Quines

• Decision Date: 21 July 1992
• Docket Number: Docket No. 131273
• Citation: 195 Mich.App. 199,489 N.W.2d 180
• Parties: Betty Taylor McNEIL, personal representative of the Estate of Robert A. McNeil, deceased, Plaintiff-Appellant, v. Fay QUINES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 180

489 N.W.2d 180

195 Mich.App. 199

Betty Taylor McNEIL, personal representative of the Estate

of Robert A. McNeil, deceased, Plaintiff-Appellant, v. Fay QUINES, Defendant-Appellee.

Docket No. 131273.

Court of Appeals of Michigan.

Submitted May 5, 1992, at Lansing.

Decided July 21, 1992, at 9:10 a.m.

Released for Publication Oct. 5, 1992.

Diane M. Freilich and Charles J. Porter, Farmington Hills, for plaintiff-appellant.

Smith & Brooker, P.C. by James W. Tarter, Bay City, for defendant-appellee.

Before WAHLS, P.J., and MARILYN J. KELLY and REILLY, JJ.

PER CURIAM.

In this medical malpractice action, plaintiff, the personal representative of the estate of Robert McNeil, deceased, appeals as of right from an order of the Tuscola Circuit Court that granted summary disposition to defendant pursuant to MCR 2.116(C)(7). The trial court held that plaintiff's claim was barred by the statute of limitations. We reverse.

This case has been before this Court previously. See McNeil v. Caro Community Hosp., 167 Mich.App. 492, 423 N.W.2d 241 (1988), which sets forth some of the facts of the case. In the prior appeal on leave granted, this Court held that the Saginaw Circuit Court, where plaintiff first brought her claim, had abused its discretion when it set aside a May 10, 1984, order that had dismissed the case with prejudice. The order that set aside the dismissal was entered on March 5, 1985, and the instant defendant was added as a party on May 28, 1985. Later, the two defendant hospitals' motions for summary disposition in the prior action were denied by the Saginaw Circuit Court, and this Court granted leave to appeal. The instant defendant was not a party to that appeal. After this Court reversed the order that set aside the dismissal and our Supreme Court denied plaintiff leave to appeal, 434 Mich. 852, 450 N.W.2d 532 (1990), defendant moved for and was granted summary disposition in the Saginaw Circuit Court. Plaintiff then filed an action in the Tuscola Circuit Court against defendant. We will address additional facts that relate to the statute of limitations issue in our discussion in issue III, infra.

I

Plaintiff first claims that the Saginaw Circuit Court erred in granting defendant's motion for summary disposition. This issue is not properly before us. The instant appeal arises from the Tuscola Circuit Court's grant of summary disposition, not that of the Saginaw Circuit Court. Plaintiff did not appeal the Saginaw Circuit Court order. Even if the issue were properly before us, we have not been provided with the record pertaining to the Saginaw Circuit Court proceeding. We will not review this argument. MCR 7.204(A)(1); MCR 7.210.

II

Plaintiff next argues that the Saginaw Circuit Court's grant of summary disposition to defendant was not an adjudication on the merits. We agree. This is a threshold argument to the statute of limitations question that we will consider next. According to the Saginaw Circuit Court order, ¹ "the Court did not base its decision on the merits of the case, but on the basis of the appellate decisions denying re-instatement [sic] of the original cause of action, thereby suggesting that this Court did not have jurisdiction to allow an amendment to the complaint to add Defendant FAY QUINES, M.D." ² The trial court did not review the merits of plaintiff's case, but rather dismissed the case because it believed that it lacked jurisdiction. This was not an adjudication on the merits. Laude v. Cossins, 334 Mich. 622, 625-626, 55 N.W.2d 123 (1952).

III

Plaintiff claims that the Tuscola Circuit Court erred in granting defendant summary disposition on the ground that the statutory period of limitation had allegedly run. The transcript of the hearing on defendant's motion does not clearly indicate the trial court's reasons for its decision. ³

Plaintiff's claim against defendant accrued on June 20, 1981, the last day of treatment and the day plaintiff's decedent died. However, a personal representative of the decedent's estate was not appointed until June 15, 1983. The two-year statutory period of limitation applicable to medical malpractice actions, M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4), M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838, would have expired five days later, on June 20, 1983. M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852, however, extended the limitation period:

If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or administrator of the deceased person or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within 2 years after letters testamentary or letters of administration are granted, although the period of limitations has run, subject to the limitations provided in section 20 of chapter 8 of Act No. 288 of the Public Acts of 1939, being section 708.20 of the Compiled Laws of 1948. But no executor or administrator shall bring an action under this provision unless he commences it within 3 years after the period of limitations has run. [Emphasis added.]

Thus, on the facts of this case, the period of limitation was extended until June 15, 1985. ⁴ On May 21, 1985, plaintiff moved to add defendant as a party. On May 28, 1985, the Saginaw Circuit Court entered an order that allowed plaintiff to amend her complaint and name defendant as a party. Because plaintiff proceeded to secure the order that allowed the amendment within a reasonable time, the period of limitation was tolled from the date plaintiff moved to add defendant, May 21, 1985. Hall v. Fortino, 158 Mich.App. 663, 405 N.W.2d 106 (1986). After defendant was joined as a party and the court acquired jurisdiction over defendant, the limitation period remained tolled. M.C.L. Sec. 600.5856; M.S.A. Sec. 27A.5856. During the Saginaw Circuit Court proceedings, then, twenty-five days remained on the limitation period, i.e., May 21, 1985, to June 15, 1985.

After this Court reversed the Saginaw Circuit Court order that allowed plaintiff to set aside the dismissal, defendant moved for summary disposition. The motion was granted, and an amended order was entered on March 1, 1990, on which date the period of limitation began to run again. Plaintiff filed her Tuscola Circuit Court action against defendant on March 14, 1990, within the twenty-five days that remained in the limitation period after the Saginaw Circuit Court action was dismissed. With regard to the new action and the statute of limitations, the period of limitation was tolled during the time the Saginaw Circuit Court action was pending between plaintiff and defendant (and, earlier,...