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STATE OF MICHIGAN
COURT OF APPEALS

LISA D. WYATT, Successor Personal Representative of the Estate of WILLIAM NOLAN WYATT, Deceased, Plaintiff-Appellee, v OAKWOOD HOSPITAL AND MEDICAL CENTERS, a/k/a OAKWOOD HEALTHCARE, INC., and THOMAS AUSTIN CHAPEL, M.D., Defendants, and PARVEZ KAHN, M.D., Defendant-Appellant. No. 263370 Wayne Circuit Court LC No. 04-402043-NH UNPUBLISHED September 11, 2007

LISA D. WYATT, Successor Personal Representative of the Estate of WILLIAM NOLAN WYATT, Deceased, Plaintiff-Appellee, v OAKWOOD HOSPITAL AND MEDICAL CENTERS, a/k/a OAKWOOD HEALTHCARE, INC., and PARVEZ KAHN, M.D., Defendants, and THOMAS AUSTIN CHAPEL, M.D., Defendant-Appellant. No. 263372 Wayne Circuit Court LC No. 04-402043-NH

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LISA D. WYATT, Successor Personal Representative of the Estate of WILLIAM NOLAN WYATT, Deceased, Plaintiff-Appellee, v OAKWOOD HOSPITAL AND MEDICAL CENTERS, a/k/a OAKWOOD HEALTHCARE, INC., Defendant-Appellant, and PARVEZ KAHN, M.D., and THOMAS AUSTIN CHAPEL, M.D., Defendants. No. 263375 Wayne Circuit Court LC No. 04-402043-NH

Before: Cavanagh, P.J., and Donofrio and Servitto, JJ. PER CURIAM. In these consolidated appeals, defendants appeal as on leave granted1 from circuit court orders denying their motions for summary disposition pursuant to MCR 2.116(C)(7) (statute of limitations). We reverse and remand. These appeals are being decided without oral argument pursuant to MCR 7.214(E). This Court reviews de novo a circuit court's summary disposition ruling. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).

In lieu of granting leave to appeal, our Supreme Court remanded this case to this Court for consideration as on leave granted. Wyatt v Oakwood Hosp & Medical Ctrs, 472 Mich 929; 697 NW2d 528 (2005). The Supreme Court directed this Court to consider "whether the statute of limitations bars an action from proceeding where the complaint was filed more than two years after the original letters of authority and before the subsequent letters of authority were issued." Id. The Supreme Court also instructed that this Court "is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application." Id.

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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). In this case, the decedent's medical malpractice claims accrued by May 20, 2001, at the latest, and thus the two-year period of limitation in MCL 600.5805(6) extended through May 20, 2003. Sandra Wyatt, the estate's original personal representative, did not file within this two year period of limitation either a mandatory notice of her intent to sue, MCL 600.2912b, or a wrongful death complaint premised on medical malpractice. The appointment of Sandra Wyatt as personal representative on September 6, 2001, however, gave her until September 6, 2003, to commence this action within the wrongful death saving period. MCL 600.5852. Wyatt gave notice of her intent to sue defendants on August 18, 2003, but her provision of this notice did not toll the wrongful death saving period under MCL 600.5856(c). Waltz, supra at 648-651, 655. Consequently, Wyatt's filing of this action on January 23, 2004, occurred nearly five months after the wrongful death saving period had expired. The circuit court found that at the time Sandra Wyatt gave defendants notice of her intent to sue, the giving of notice tolled the wrongful death saving period. The court declined to retroactively apply Waltz, supra at 648-651, 655, in which the Michigan Supreme Court held that under the clear and unambiguous language of MCL 600.5856, the giving of a notice of intent to sue does not toll the period in MCL 600.5852, which constitutes a wrongful death saving period, "an exception to the limitation period." (Emphasis in original). As noted previously, the Supreme Court has mandated that we apply Waltz retroactively in this case. Furthermore, 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 operate to relieve wrongful death plaintiffs from complying with Waltz's time restraints,"2 Ward v Siano, 272 Mich App 715, 720; 730 NW2d 1 (2006), lv in abeyance ___ Mich ___; 729 NW2d 213 (2007).

As summarized in Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 576 n 27; 703 NW2d 115 (2005) both the Michigan Supreme Court and this Court have rejected the notion that a retroactive application of Waltz, in a manner that renders an estate's commencement of suit as untimely, qualifies as unconstitutional.

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The estate contends that plaintiff's appointment as its successor personal representative on May 11, 2004, either rendered the original complaint timely or afforded her two additional years to pursue legal action, which she did timely by filing a first amended complaint in September 2004. 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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