Braverman v. Garden City Hospital , 746 N.W.2d 612 ( 2008 )

746 N.W.2d 612 (2008)

Eric A. BRAVERMAN, Successor Personal Representative of the Estate of Patricia Swann, Deceased, Plaintiff-Appellee,
v.
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.

Docket Nos. 134445, 134446. COA Nos. 264029, 264091.

Supreme Court of Michigan.

April 9, 2008.

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., 480 Mich. 948, 741 N.W.2d 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, 609 N.W.2d 177 (2000)] was decided and within 182 days after Waltz [v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (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. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 658 N.W.2d 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 N.W.2d 755 (2007).

NOTES

[1] Defendants argue that Lindsey v. Harper Hospital, 455 Mich. 56, 564 N.W.2d 861 (1997), should apply. However, Lindsey 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." Lindsey, supra at 66, 564 N.W.2d 861. After Lindsey 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.