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STATE OF MICHIGAN
COURT OF APPEALS


LINDA JEAN CLEMENS, Personal Representative of the Estate of THEREL B. KUZMA, Deceased, Plaintiff-Appellant, v JOHN D. KOZIARSKI, M.D., F.A.C.S., FAMILY SURGICAL SERVICES, P.C., FAMILY SURGICAL CARE, P.C., and XYZ UNKNOWN CORPORATION, Defendants-Appellees.

UNPUBLISHED September 18, 2007

No. 264688 Calhoun Circuit Court LC No. 03-001783-NH

CAROL A. MACKENZIE, Personal Representative of the Estate of THEREL B. KUZMA, Deceased, Plaintiff-Appellant, v JOHN D. KOZIARSKI, M.D., F.A.C.S., and FAMILY SURGICAL SERVICES, P.C., Defendants-Appellees, and FAMILY SURGICAL CARE, P.C., and XYZ UNKNOWN CORPORATION, Defendants. No. 265619 Calhoun Circuit Court LC No. 05-001212-NH

Before: Cavanagh, P.J., and Donofrio and Servitto, JJ.

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PER CURIAM. These consolidated appeals involve wrongful death medical malpractice actions. In Docket No. 264688, plaintiff Linda Jean Clemens, the personal representative of the estate of decedent Therel B. Kuzma, appeals by delayed leave granted from a circuit court order granting defendants summary disposition pursuant to MCR 2.116(C)(7) (statute of limitations). In Docket No. 265619, plaintiff Carol A. MacKenzie, the estate's successor personal representative, appeals as of right from a circuit court order granting defendants summary disposition under subrule (C)(7). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). We review de novo a circuit court's summary disposition rulings. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court "consider(s) all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them." [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004), quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).] "Whether a period of limitations applies to preclude a party's pursuit of an action constitutes a question of law that we [also] review de novo." Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003). The decedent's medical malpractice claims accrued on October 3, 2000, and thus the two-year period of limitation in MCL 600.5805(6) extended through October 3, 2002. Clemens failed to file within this two-year period of limitation either a mandatory notice of her intent to sue defendants, MCL 600.2912b, or a complaint on the estate's behalf. But Clemens' appointment as personal representative on November 28, 2000, gave her until November 28, 2002, to commence this action within the wrongful death saving period. MCL 600.5852. Clemens gave notice of her intent to sue defendants on November 26, 2002, but her provision of this notice did not toll the wrongful death saving period pursuant to MCL 600.5856(c). Waltz, supra at 648-651, 655. Accordingly, Clemens' filing of the first action on May 28, 2003, occurred nearly six months after the wrongful death saving period had expired. The estate maintains that Waltz should not apply retroactively. But controlling decisions of this Court have determined that (1) the Supreme Court's holding in Waltz "applies retroactively in all cases," Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d 666 (2006), lv gtd 477 Mich 1066 (2007), and (2) equitable or "judicial tolling should not

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operate to relieve wrongful death plaintiffs from complying with Waltz's time restraints,"1 Ward v Siano, 272 Mich App 715, 720; 730 NW2d 1 (2006), lv in abeyance 729 NW2d 213 (2007). The estate also contends that MacKenzie's appointment as its successor personal representative on August 23, 2004, afforded her a new wrongful death saving period in which to pursue legal action, which she timely did by filing the complaint in LC No. 05-001212-NH on April 7, 2005. The Michigan Supreme Court in Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 33; 658 NW2d 139 (2003), determined that the language of MCL 600.5852 "clearly allows an action to be brought within two years after letters of authority are issued to the personal representative." Because

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