Mullins v. St Joseph Mercy Hospital, 722 N.W.2d 666

Lead Opinion

Talbot, J.

This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve the conflict between vacated part III of the prior opinion in this case, Mullins v St Joseph Mercy Hosp, 269 Mich App 586, 591-593; 711 NW2d 448 (2006), and Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004). Fart III of the prior opinion disagreed with this Court’s holding in Ousley, supra at 493-495, that the Supreme Court’s holding in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), applies with full retroactivity. In light of the fact that the Michigan Supreme Court has plainly and unambiguously expressed its intent that the decision in Waltz applies retroactively, we reject the analysis in part III of the prior opinion in Mullins, and reaffirm the retroactivity conclusion reached in Ousley.

This conflict presents a narrow question concerning the state of the law governing the retroactivity of Waltz at the time this Court issued its prior opinion in Mullins. In Ousley, supra at 493-495, this Court first addressed the Waltz retroactivity question in a binding published opinion, MCR 7.215(J)(1), holding that Waltz applied with full retroactivity. The Michigan Supreme Court denied the plaintiffs application for leave to appeal. Ousley v McLaren, 472 Mich 927 (2005). The Supreme Court’s order denying leave does not constitute binding precedent, MCR 7.321, but the timing of the order is a relevant background fact.¹

On June 17, 2005, one day after the Michigan Supreme Court denied the plaintiffs application for leave to appeal in Ousley, the Supreme Court very clearly expressed its view regarding the extent to which courts should retroactively apply its holding in Waltz, supra at 648-655. In three consecutive orders, the Michigan Supreme Court offered the following, specific guidance:

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration, as on leave granted, of the question 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. That Court is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application. [Wyatt v Oakwood Hosp & Med Ctrs, 472 Mich 929 (2005) (citation omitted; third emphasis added).]

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration, as on leave granted, of the question 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. That Court is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application. [Evans v Hallal, 472 Mich 929 (2005) (citation omitted; third emphasis added).]

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration as on leave granted. That Court is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application. [Forsyth v Hopper, 472 Mich 929 (2005) (citation omitted; emphasis added).]

We find that the repeated and plain expressions of the Michigan Supreme Court in Wyatt, Evans, and Forsyth, which the majority in Mullins entirely failed to address, are dispositive of the Waltz retroactivity issue in this Court. Irrespective of the prior Mullins opinion’s proffered disagreement with the analysis in Ousley, the panel in Mullins erred by disregarding these Supreme Court directives.

In recent supplemental briefing, plaintiff suggests that the orders in Wyatt, Evans, and Forsyth lack any precedential effect because they do not sufficiently explicate the Michigan Supreme Court’s reasoning behind its directives to apply Waltz with full retroactivity. The requirement that a decision of our Supreme Court “shall contain a concise statement of the facts and reasons for each decision” derives from the Michigan Constitution. Const 1963, art 6, § 6. The Michigan Supreme Court has recognized that its summary disposition orders constitute binding precedent when they “containG a concise statement of the applicable facts and the reason for the decision.” People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993). Similarly, this Court consistently has adhered to the principle that the Michigan Supreme Court’s summary disposition orders constitute binding precedent when they finally dispose of an application and are capable of being understood, even by reference to other published decisions. Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002); Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 591 n 8; 546 NW2d 690 (1996), remanded on other grounds 455 Mich 863 (1997).

Our treatment of the Supreme Court’s orders in Wyatt, Evans, and Forsyth as binding precedent does not undermine Const 1963, art 6, § 6. First, the Supreme Court’s orders in Wyatt and Evans each contain a concise statement of the operative facts where they state that “the complaint was filed more than two years after the original letters of authority and before the subsequent letters of authority were issued.” (Emphasis omitted.) Second, each of the three orders contains “reasons for each decision” through explicit reference to the Supreme Court’s published decision in Waltz. Additionally, although the June 17, 2005, orders in Wyatt, Evans, and Forsyth do not specifically cite this Court’s decision in Ousley, or other cases discussing principles of retroactivity, our Supreme Court was certainly cognizant of this Court’s retroactivity analysis in Ousley, supra at 493-495, when it similarly concluded in Wyatt, Evans, and Forsyth that the decision in Waltz applies retroactively. We cannot forget or ignore that only the day before entry of the three June 17, 2005, orders, the Supreme Court had denied the Ousley plaintiffs application for leave to appeal, declining the opportunity to disturb this Court’s conclusion that Waltz must apply with full retroactivity. When the Supreme Court entered the orders directing full retroactive application of Waltz, it essentially sanctioned the retroactivity conclusion reached by this Court in Ousley. Thus, considering the Supreme Court orders in Wyatt, Evans, and Forsyth in the context in which the Supreme Court entered them, the orders easily can be understood to contain “the facts and reasons for each decision” by reference to the full, published decisions in Waltz and Ousley, in satisfaction of the constitutional mandate. Wechsler, supra at 591 n 8, citing Crall, supra at 464 n 8.

In summary, the Supreme Court held in Waltz, supra at 648-655, that pursuant to then-applicable MCL 600.5856(d), now MCL 600.5856(c), a medical malpractice litigant’s filing of a notice of intent does not toll the wrongful death saving period in MCL 600.5852, and this Court in Ousley, supra at 493-495, held that Waltz applies retroactively. When read together and in reference to Waltz and Ousley, we view the Supreme Court’s orders in Wyatt, Evans, and Forsyth as complete and understandable. We, therefore, reject plaintiffs contention that the Supreme Court’s one-sentence retroactivity statement in a single order, viewed alone and without context, lacks sufficient specificity to control the retroactivity question. We reiterate that the Supreme Court entered three separate orders in three distinct cases involving the issue of Waltz’s retroactivity. Each of these cases plainly and unambiguously directed this Court to apply Waltz retroactively. We cannot reasonably characterize the Supreme Court’s three consecutive June 17, 2005, orders, which identically directed the proper retroactive application of Waltz, as limited to the facts of their respective cases. The Supreme Court could not have more clearly expressed its conclusion that Waltz applies retroactively in all cases.

To the extent that we ideally might wish to have access to more fully developed guidance from the Supreme Court concerning the retroactivity of Waltz, the Supreme Court plainly found that the Waltz retroactivity question required no further analysis by it, and we simply cannot disregard the clear import of the guidance that the Supreme Court chose to offer in Wyatt, Evans, and Forsyth, specifically, that Waltz applies retroactively in all cases. A review of the Michigan Reports volumes reveals that the Supreme Court occasionally directs the retroactive reach of its prior decisions by orders of summary disposition.² In Wyatt, Evans, and Forsyth, the Supreme Court has repeatedly spoken through its orders instructing this Court to apply Waltz with full retroactivity, and, as an intermediate court, we are bound by the Supreme Court’s clear directives. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993) (noting that this Court and all lower courts must adhere to Supreme Court authority); People v Kennedy, 384 Mich 339, 343; 183 NW2d 297 (1971) (observing that “it is axiomatic that a court [including an appellate court] speaks through its orders”). Because part III of the prior opinion in Mullins disregarded the binding Supreme Court precedent regarding the retroactive application of Waltz, we disavow the Mullins analysis. We need not consider the merits of Mullins’s reliance on Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), rev’d in part in Waltz, supra at 652-655, or its criticism of the retroactivity analysis in Ousley, supra at 493-495.

We note that plaintiff and the amicus curiae argue at length that the retroactive application of Waltz inequitably deprives some personal representative litigants of otherwise valid medical malpractice claims. To the extent that we may empathize with this contention, we nonetheless may not properly consider the potential application of equitable principles because a separate conflict panel will be convened to consider whether equity may prevent the retroactive application of Waltz. Ward v Siano, 270 Mich App 801 (2006), vacating in part 270 Mich 584; 718 NW2d 371 (2006).

Lastly, with all due respect, the dissent by Judge MURPHY misinterprets the scope of authority that the Michigan Court Rules plainly vest in a convened conflict panel. Judge MURPHY correctly observes that in voting to convene a special panel to resolve the conflict between Ousley and vacated part III of the prior Mullins decision, the judges of this Court found that, regarding the retroactivity of Waltz, an “outcome-determinative questionG” existed under MCR 7.215(J)(3). But the dissent by Judge MURPHY mistakenly asserts that the order convening a conflict panel in this case restricts the scope of this special panel’s resolution of the present conflict.

A review of MCR 7.215(J) reflects that subrules 1 through 4 prescribe the procedure pursuant to which this Court may declare and assemble a special panel to address an outcome-determinative question when a panel of this Court has declared its disagreement with the analysis contained in a prior published opinion of this Court. No language in subrules 1 through 4 purports to discuss the authority of the convened special panel to consider the substantive merits of the outcome-determinative question. The only subrule of MCR 7.215(J) that refers to the special panel’s authority to consider the outcome-determinative question presented is subrule 5, in which the Supreme Court has provided as follows:

An order directing the convening of a special panel must vacate only that portion of the prior opinion in the case at bar addressing the particular question that would have been decided differently but for the provisions of subrule (1). The special panel shall limit its review to resolving the conflict that would have been created but for the provisions of subrule (1) and applying its decision to the case at bar. The parties are permitted to file supplemental briefs, and are entitled to oral argument before the special panel unless the panel unanimously agrees to dispense with oral argument. The special panel shall return to the original panel for further consideration any remaining, unresolved issues, as the case may require. [MCR 7.215(J)(5) (emphasis added).]

The clear and unambiguous language of subrule 5 simply imposes no restriction on the convened special panel’s ability to consider and resolve the issue in conflict.³ See In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004) (explaining that unambiguous court rule language must be enforced as plainly expressed, without further judicial construction). Consequently, if the Supreme Court orders in Forsyth, Wyatt, and Evans bind us and control the outcome of the conflict question, as we believe they do, we are both obligated by law to follow them and plainly authorized by MCR 7.215(J)(5) to do so.⁴

Reversed and remanded for entry of summary disposition for defendants.

HOEKSTRA, EJ., and METER and DONOFRIO, JJ., concurred.

Notes

1 In several subsequent published opinions, this Court adhered to the Ousley retroactivity analysis. See, e.g., Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 574; 703 NW2d 115 (2005); McMiddleton v Bolling, 267 Mich App 667, 671; 705 NW2d 720 (2005).

2 See People v O’Donnell, 474 Mich 867 (2005) (directing that People v Randolph, 466 Mich 532; 648 NW2d 164 [2003], and People v Scruggs, 256 Mich App 303; 662 NW2d 849 [2002] “are to be given limited retroactive effect”); Ewing v Detroit, 468 Mich 886, 887 (2003) (ordering that “[f]or the reasons stated in the dissenting opinion in the Court of Appeals, Robinson v Detroit, 462 Mich 439 [613 NW2d 307] (2000), applies retroactively”); People v Franklin, 417 Mich 985 (1983) (reversing the defendant’s conviction and sentence because his “guilty plea and sentence preceded the Supreme Court’s decision in Briggs [sub nom People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982)] establishing the rule requiring the trial judge to permit a defendant to withdraw his plea in the event the trial judge chooses not to follow a plea-bargain sentence recommendation”).

3 Subrules 6 and 7 of MCR 7.215(J) likewise pertain to procedure, specifically the publication of the special panel’s decision and the time frame for seeking reconsideration or Supreme Court review of the special panel’s decision.

4 To the extent that Judge Murphy’s dissent relies on Health Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich App 83, 98-100; 706 NW2d 843 (2005), in support of the proposition that the order declaring a conflict operates as law of the case restricting the convened special panel’s authority to consider the conflict question, the special panel’s decision in Health Call of Detroit does not consider the unfettered authority to resolve conflict questions that MCR 7.215(J)(5) provides a convened special panel. Furthermore, the panel in Health Call of Detroit considered whether the facts in that case generated a conflict that the special panel should address and decide, id., while in this case, we face a pure question of law, specifically whether the Supreme Court’s orders in Forsyth, Wyatt, and Evans constitute binding precedent and thus control resolution of the conflict question itself.

The dissent’s suggestion that the order declaring a conflict in this case operates as law of the case governing this special panel’s consideration of the outcome-determinative question presented not only lacks support in MCR 7.215(J), but constitutes a troubling proposition for a different reason. The dissent notes that at the time the prior Mullins decision expressed its disagreement with Ousley and the judges of this Court voted to convene this special panel, the Michigan Supreme Court had issued its orders in Forsyth, Wyatt, and Evans; the dissent reasons, therefore, that because “these orders were subject to consideration,” this Court’s “vote to convene a special panel despite the existence of the Supreme Court orders was essentially a determination that the orders were not binding precedent. .. .” Post at 520, 524. Even assuming that we could simply ignore the controlling nature of the Supreme Court orders in this case, the dissent’s logic would require us to presume that the judges voting to convene the conflict panel considered the Supreme Court orders, of which the prior Mullins decision had made no mention. Given the absence of any mention of the Supreme Court orders in Mullins, no facts support the dissent’s leap of logic.

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Dissenting Opinion

MURPHY, J.

(dissenting). I respectfully disagree with the majority that Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), should be given full retroactive effect, as was held in Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004). Our Supreme Court’s orders in Wyatt v Oakwood Hosp & Med Ctrs, 472 Mich 929 (2005), Evans v Hallal, 472 Mich 929 (2005), and Forsyth v Hopper, 472 Mich 929 (2005), and the Court’s denial of the application for leave to appeal in Ousley, 472 Mich 927 (2005), do not, in my opinion, constitute binding precedent. And I am firmly of the opinion that Waltz was wrongly decided and that a sound analysis of the principles governing the determination of whether a judicial decision should be given retroactive effect, as opposed to prospective effect only, leads to but one reasonable conclusion: Waltz should not be applied retroactively. I would settle the conflict in favor of Mullins v St Joseph Mercy Hosp, 269 Mich App 586; 711 NW2d 448 (2006), vacated in part 269 Mich App 801 (2006). Accordingly, I dissent.¹

The Supreme Court orders cited above are clear, concise, and understandable, and they are not controlled by, nor do they turn on, the particular facts of the case. The legal principle declared, that Waltz is to be given full retroactive application, is broad and effectively all-encompassing and not subject to variant interpretations. But the orders do not technically comply with the test set forth in People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993), in which the Court, addressing an issue regarding the precedential value of its orders, stated:

In its opinion in this case, the Court of Appeals characterized our order in [People v Bailey, 439 Mich 897 (1991)] as “not binding precedent.” There is no basis for this conclusion. The order in Bailey was a final Supreme Court disposition of an application, and the order contains a concise statement of the applicable facts and the reason for the decision. Const 1963, art 6, § 6.^[2]

The need for a concise statement of the facts and a recitation of the reasons for the decision is compelled by, as recognized in Crall, the Michigan Constitution.

Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissent. [Const 1963, art 6, § 6.]

The Legislature similarly mandated the inclusion of language touching on the facts and the reasons for a ruling in Supreme Court decisions, as reflected in MCL 600.229, which provides:

Decisions of the supreme court, including all cases of mandamus, quo warranto, and certiorari, shall be in writing, with a concise statement of the facts and reasons for the decisions; and shall be signed by the justices concurring in the opinion. Any justice dissenting from a decision shall give the reasons for his dissent in writing under his signature. All opinions and dissents shall be filed in the office of the clerk of the supreme court, and copies of them shall be delivered to the supreme court reporter at the same time.

If the necessity to supply the “reasons” for a decision is satisfied by simply enunciating a legal conclusion, i.e., Waltz is to be given full retroactive application, as opposed to providing some legal analysis in support of the conclusion, and if the “decision” in the relevant orders is deemed the directive that the cases be remanded as on leave granted, with the reference to Waltz and retroactivity constituting the “reasons” for that decision, then the orders at issue partially satisfy the constitutional and statutory mandates. In my opinion, however, some or all of these assumptions cannot be made. First, the “decision” that is of relevance to us in these orders is the finding that Waltz is fully retroactive, and there are no reasons given for that decision or conclusion in any of the orders.³ Next, if the “decision” in these orders is indeed the remand directive, the reference to Waltz and retroactive application does not appear to be the “reason” for that decision; rather, the language is merely part of the Court’s instruction and guidance to this Court with respect to the analysis on remand. Moreover, it is indisputable that the reference to Waltz does not constitute the “reason” why Waltz applies retroactively, considering that this issue was not broached in Waltz. It would certainly be preferable to have the Supreme Court give some minimal explanation or provide even some cursory analysis relative to its legal conclusion that Waltz is fully retroactive before these orders are deemed binding precedent, resulting in substantively meritorious cases being sent to the legal graveyard. I think it possible that if the Supreme Court actually prepared a full opinion on the topic, which would force and require consideration and analysis of the principles controlling a retroactivity determination, a majority of the Court might well conclude that Waltz applies prospectively only, or, minimally, resolution of the issue would be difficult.

The majority is forced to speculate that, even though Ousley is not mentioned in any of the Supreme Court orders, it is clear that the Supreme Court was cognizant of Ousley and its retroactivity analysis, and the Court therefore implicitly sanctioned Ousley’s retroactivity analysis in entering the orders. The basis for this reasoning focuses on the fact that the denial of leave in Ousley was entered the day before the three orders at issue were entered by the Court. We should not rely on speculation, especially considering the large number of applications presented to the Supreme Court and the involvement of commissioners and staff in preparing the orders, nor should we rely on any implication that the Court sanctioned Ousley if this would be inconsistent with the constitutional and statutory provisions cited above, which provide that the reasons for the decision “shall be in writing.” Const 1963, art 6, § 6; MCL 600.229. It would have been a simple matter for the Court to have expressly referenced and adopted Ousley in the three orders. This is exactly what the Supreme Court did in an order cited favorably by the majority, Ewing v Detroit, 468 Mich 886-887 (2003), in which the Court ruled, “For the reasons stated in the dissenting opinion in the Court of Appeals, Robinson v Detroit, 462 Mich 439 [613 NW2d 307] (2000), applies retroactively.” In another order cited by the majority, People v O’Donnell, 474 Mich 867 (2005), the Supreme Court cited two previous opinions in support of its ruling regarding limited retroactivity. I have no qualms with the concept of incorporation by reference, but finding incorporation by speculation and implication is not appropriate.

Even if one determines that the orders include the “reasons” for the decisions in a manner pertinent to the issue before us and consistent with the Constitution and the statute, they do not contain a “concise statement of the facts” as required by Const 1963, art 6, § 6 and MCL 600.229.⁴ While the orders are understandable with regard to Waltz and its retroactive nature, and can be applied to a broad spectrum of cases outside of Wyatt, Evans, and Forsyth without the need to know the particular facts involved in other actions, the constitutional and statutory requirements nonetheless remain applicable and must be satisfied. I am not prepared to rule that these orders constitute binding precedent when they do not comply with Const 1963, art 6, § 6, MCL 600.229, and the Crall decision.

Viewing the Supreme Court orders at issue as binding precedent that controls the outcome of this conflict dispute is also problematic for the reason that such a conclusion runs contrary to this Court’s earlier determination, pursuant to a poll under MCR 7.215(J)(3), that an outcome-determinative issue existed between Mullins and Ousley and required resolution by a special panel. “Special panels may be convened to consider outcome-determinative questions only.” MCR 7.215(J)(3)(a). The decision or outcome in Mullins regarding the retroactivity of Waltz would not hinge on whether the analysis in Ousley was legally correct if indeed the Supreme Court orders are controlling. But this Court has already ruled that an outcome-determinative issue exists, thereby requiring substantive analysis of whether the reasoning and holding in Ousley was sound and whether Waltz should be applied retroactively, and any reliance now solely on the Supreme Court orders would surely run afoul of the law of the case doctrine. See Health Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich App 83, 98-100; 706 NW2d 843 (2005). Importantly, Mullins and this Court’s vote to convene a special conflict panel all occurred after the relevant Supreme Court orders were issued, and thus these orders were subject to consideration.

After the Mullins panel declared that it was required to rule that Waltz was retroactive because Ousley, as binding precedent, mandated such a ruling, the decision by this Court, as a whole, to convene a special conflict panel on the issue reflected an agreement by this Court that the Mullins panel correctly determined that it was bound by Ousley, which controlled the ruling. The majority’s analysis necessarily rejects this conclusion by determining that Ousley does not control and that the whole matter can be resolved simply by reference to the Supreme Court orders. There was no conflict that required resolution if the Supreme Court orders constituted binding precedent.⁵ As such, the majority opinion is directly contrary to the majority vote of this Court.

MCR 7.215(J)(5) does not lend support for the majority’s position. The majority relies on the following sentence found in MCR 7.215(J)(5): “The special panel shall limit its review to resolving the conflict that would have been created but for the provisions of subrule (1) and applying its decision to the case at bar.” This language merely confines the special panel to analysis of the conflict issue and precludes the special panel from ruling on matters outside the issue for which it was formed; it does not abrogate the law of the case doctrine. Apparently, the majority believes that the language of MCR 7.215(J)(5) gives it, or any other special panel, unfettered and unrestricted discretion in resolving a conflict, without the need to abide by legal principles that govern the manner in which this Court analyzes and decides cases. For example, if a special panel were confronted with a conflict issue regarding a matter of statutory construction, under the majority’s reasoning, the panel could ignore and even reject the well-accepted rules of statutory construction in resolving the conflict because, as asserted by the majority, MCR 7.215(J)(5) “simply imposes no restriction on the convened special panel’s ability to consider and resolve the issue in conflict.” Ante at 512. This position is untenable. There are legal rules, principles, and doctrines that we are required to follow in any ruling issued by this Court, and this includes rules of statutory construction as well as the doctrine of law of the case.⁶

The majority finds my position regarding law of the case to be troubling⁷ because it requires a presumption that the judges voting to convene the special panel were aware of the Supreme Court orders when they voted, yet Mullins did not address the orders. I first note that both the majority and the dissent in Mullins cited and discussed McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005), which was decided before the conflict polling took place. The majority in Mullins even directed readers to review McLean: “We reject Ousley for the reasons stated in Judge 0’CONNELL’s dissent in McLean . .. and reiterated in this opinion. For a complete review of the legal development of this issue, we direct the reader to the McLean opinions.” Mullins, supra at 587 n 1.

McLean extensively addressed the three Supreme Court orders at issue. McLean itself was a published opinion of this Court and most certainly reviewed by many members of this Court. Additionally, I am aware of at least three unpublished opinions of this Court decided in December 2005, involving nine different judges of the Court, in which the panels specifically referred to the three Supreme Court orders relative to the issue of Waltz and retroactivity. See Amon v Bots-ford Gen Hosp, unpublished opinion per curiam of the Court of Appeals, issued December 27, 2005 (Docket No. 260252); Washington v Jackson, unpublished opinion per curiam of the Court of Appeals, issued December 13, 2005 (Docket No. 263108); Costa v Gago, unpublished opinion per curiam of the Court of Appeals, issued December 6, 2005 (Docket No. 256673). Further, in Mazumder v Univ of Michigan Bd of Regents, 270 Mich App 42; 715 NW2d 96 (2006), a case decided around the time of the conflict polling and heard in December 2005, the Court referred to the three Supreme Court orders. Considering only McLean, Mullins, Mazumder, and the three unpublished opinions, I count 17 members of this Court, including myself, who absolutely were aware of the Supreme Court order's at the time of the conflict polling. Furthermore, I am not aware of any authority that suggests that the law of the case doctrine is inapplicable because a judge or a panel in the controlling ruling was unaware of binding precedent. To the contrary, the law of the case applies even if the prior ruling is legally unsound. Driver v Hanley (After Remand), 226 Mich App 558, 565; 575 NW2d 31 (1997) (doctrine applies “without regard to the correctness of the prior determination”). Also, reliance on the argument that the members of this Court might not have been aware of “binding” Supreme Court precedent places all of us in a negative light.

The majority additionally suggests that Health Call, which I authored, incorrectly addressed the law of the case doctrine within the context of conflict resolution. For the reasons stated above as part of my analysis here, Health Call correctly addressed the issue regarding the law of the case, and, regardless, it represents binding precedent. The majority’s attempt to distinguish Health Call reveals a fundamental misunderstanding of that decision. The three-member panel that issued the first opinion in Health Call of Detroit v Atrium Home & Health Care Services, Inc, 265 Mich App 79; 695 NW2d 337 (2005), vacated in part 265 Mich App 801 (2005) (vacated pursuant to MCR 7.215[J][5] for a special panel to be convened), factually distinguished its case from the earlier opinion in Environair, Inc v Steelcase, Inc, 190 Mich App 289; 475 NW2d 366 (1991), yet found that it was nevertheless bound to follow Environair. This indicated a position that the legal principle enunciated in Environair was a blanket rule not subject to factual exceptions or distinctions. When this Court voted to convene a special panel in Health Call, it necessarily reflected that the Court also found that Environair set forth a blanket legal rule not subject to factual exceptions or distinctions, otherwise there would not have existed an outcome-determinative conflict issue to resolve, as Health Call could have simply been found factually distinguishable and not controlled by Environair. Because a special panel was convened to resolve the conflict, the panel was bound by law of the case, noting, “We must construe Environair as standing for the proposition that damages arising out of or related to the termination of an at-will contract are speculative as a matter of law in all cases....” Health Call, supra, 268 Mich App at 98. Just as the Health Call panel was required to construe Environair in a certain way because of the conflict vote to avoid offending the law of the case doctrine, we are likewise compelled to construe the Supreme Court orders as not being binding precedent in order to comply with the doctrine. This is not a matter of ignoring the orders, but merely an acceptance that the issue was necessarily and implicitly dealt with and rejected previously when the polling occurred.

The majority sums up its ruling by stating that if the Supreme Court orders in Forsyth, Wyatt, and Evans bind us and control the outcome of the conflict question, as it believes they do, the Court is obligated by law to follow the orders. This conclusion begs the question: Why, if the orders are binding, did this Court, as a whole, vote to convene a special panel? There can only be one answer: This Court’s vote to convene a special panel despite the existence of the Supreme Court orders was essentially a determination that the orders were not binding precedent, yet the majority feels that it can revisit the issue, which I find improper.

If, hypothetically, the Supreme Court, after Ousley was decided, had issued a full opinion that analyzed the issue of retroactivity and held that Waltz was fully retroactive, and then Mullins was decided, in which the Court, as was done here, called for conflict resolution because of a disagreement with Ousley, a vote by this Court to nonetheless convene a special panel would necessarily indicate a conclusion that the Supreme Court’s decision was not controlling, because otherwise there would be no legal basis or need to convene a panel to resolve a conflict. The actual circumstances here are no different if one concludes that the three orders are binding precedent. Considering the procedural history faced by this conflict panel, I conclude that it is necessary for us to substantively address the issue whether Waltz should be applied retroactively.

I now turn to my view of the Waltz decision, both the merits of the decision and whether it should be applied retroactively. In this regard, I am reminded of the Michigan Supreme Court’s directive in People v Mitchell, 428 Mich 364, 369-370; 408 NW2d 798 (1987), in which the Court, while stating that a decision by the Court was binding on the Court of Appeals under the tenet of stare decisis and must be followed, also noted that the Court of Appeals “may properly express its belief that [a Supreme Court decision] was wrongly decided ....”

While following Waltz, as I must, I respectfully accept the Court’s “invitation” to express my belief that Waltz was wrongfully decided and that, at a minimum, I am of the opinion that it is unjust for the Michigan Supreme Court to require that Waltz be applied retroactively. The holding in Waltz, in my estimation, was clearly contrary to the Legislature’s intent and represented a strained analysis, purportedly consistent with governing principles of statutory construction. In Waltz, the Supreme Court held that the tolling provision found in MCL 600.5856(c),⁸ applicable in medical malpractice actions, does not apply to MCL 600.5852⁹ because the tolling statute only tolls statutes of limitations or repose and § 5852 is a wrongful-death saving statute or provision, not a statute of limitations or repose. The term “saving statute” is a judicially created label, as there is no such reference in § 5852. The Supreme Court took it upon itself to define § 5852 as a “saving statute” where the Legislature itself failed to do so. From an “implied” perspective, while § 5852 has saving qualities, it can just as well be viewed as and labeled a statute that provides an alternative limitations period or a limitations period that is applicable under certain circumstances in wrongful-death cases, or simply a statute that has both saving and statute of limitations aspects; it ultimately sets timelines within which actions must be filed or they are lost. MCL 600.5852 is contained in chapter 58 of the Revised Judicature Act (RJA), MCL 600.5801 et seq., and this entire chapter addresses the “LIMITATION OF ACTIONS,” according to its title. It defies logic and principles of statutory construction to conclude that, because the Legislature used the words “statutes of limitations or repose” in § 5856, it did not intend to encompass § 5852 for tolling purposes because § 5852 is a “saving statute” and not a statute of limitations, despite the fact that § 5852 is contained in chapter 58 of the RJA, that § 5852 sets forth time periods within which a wrongful-death action must be filed by a personal representative, and that it was the Court, and not the Legislature, that labeled § 5852 a “saving statute.”

Attributing to the Legislature knowledge and an understanding that § 5852 is a “saving statute” only and using this unexpressed thought, knowledge, or belief in construing other statutes are contrary to a constructionist approach in statutory interpretation. By enacting § 5856(c), the Legislature was plainly and unambiguously providing a tolling period for medical malpractice actions relative to notices of intent, MCL 600.2912b, which tolling comes into play any time a cause of action is susceptible to being lost because the claim would be untimely if there were full compliance with the requirements of § 2912b, and § 5852 indisputably plays a role in determining whether an action is time-barred, which is the essence of limitations periods.

Waltz relied in part on Miller v Mercy Mem Hosp, 466 Mich 196; 644 NW2d 730 (2002). In Miller, supra at 202-203, our Supreme Court stated that § 5852 is a saving statute and not a statute of limitations, while at the same time ruling that the six-month discovery period in MCL 600.5838a(2)¹⁰ is a “distinct period of limitation.” The Court found that the six-month discovery provision in § 5838a(2) is a period of limitations because “ [i]t is a statutory provision that requires a person who has a cause of action to bring suit within a specified time.” Miller, supra at 202. In the context of defining a statute of limitations, I see no true difference between a statute that gives a party six months to file suit after a claim was or should have been discovered and a statute that gives a party two years to file suit after letters of authority are issued. Both §§ 5838a(2) and 5852 are triggered under certain circumstances, i.e., discovery of a claim or the wrongful death of a decedent and appointment of a personal representative, and both require “a person who has a cause of action to bring suit within a specified time.” Miller, supra at 202.

Section 5852 allows a personal representative in a medical malpractice action to file suit within two years after letters of authority are issued even though the standard two-year period of limitations on malpractice actions may have run. Just as § 5852 can “save” an action when a medical malpractice limitations period has expired, § 5838a(2) can “save” an action, on the basis of discovery, when the general limitations period has run. And both statutes also include deadlines within which to file an action. I also note that § 5838a(2) and (3) provide, in part, that medical malpractice claims are properly commenced when filed within the “applicable period” prescribed in “sections 5851 to 5856,” which encompasses § 5852. This reference to “applicable period[s]” clearly indicates that the Legislature viewed § 5852 as a statute of limitations. Furthermore, Miller stated that the purpose of § 5852 was to give personal representatives a reasonable time to pursue actions, Miller, supra at 203. Yet how is this purpose served or even recognized in illogically concluding that the Legislature decided to deprive personal representatives in wrongful-death medical malpractice actions from having the benefit of the tolling statute?¹¹ Again, the Legislature did not call § 5852 a “saving statute.” The Legislature directed that a notice be served before the filing of a medical malpractice complaint, § 2912b, and it intended to provide tolling to a plaintiff in such actions, § 5856(c), but that intent is contravened in Waltz by a ruling that relies entirely on the judicially created label attached to § 5852.

Waltz also relied on Lindsey v Harper Hosp, 455 Mich 56; 564 NW2d 861 (1997). In Lindsey, the Supreme Court repeatedly referred to § 5852 as the “statute of limitations saving provision.” The Court noted that § 5852 has the effect of extending the limitations period set forth in MCL 600.5805 and is “an exception to the statute of limitations ....” Lindsey, supra at 64-65. The Court’s reference to § 5852 being an exception to the statute of limitations was made in the context of its discussion of § 5805, the general statute of limitations, and, in my opinion, was meant to indicate only that § 5852 could be utilized if an action was lost under § 5805, and not that § 5852 lacked its own distinctive features or characteristics common to other limitations statutes. In other words, Lindsey merely indicated that § 5852 had a saving feature relative to § 5805, but there was no suggestion whatsoever that other aspects of § 5852 could not be deemed as setting forth limitations periods in their own right that must be satisfied before a suit can be pursued. Indeed, the Court stated that § 5852 extended the limitations period, which language necessarily implies that § 5852 not only can save an action but additionally provides an outer time line within which a suit must be filed. Lindsey, supra at 64.

In my opinion, § 5856(c) should apply to § 5852, and I would respectfully encourage the Supreme Court to reconsider its analysis of this issue.

Regarding the issue whether Waltz, if it remains unchanged, should be retroactive or prospective only, I conclude that the applicable principles in making this determination favor a finding that it should be applied prospectively only.

The three relevant cases on this issue are Miller, Lindsey, and Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), overruled in part by Waltz, supra at 655. Lindsey involved the question whether the plaintiffs wrongful-death action was barred despite § 5852. More specifically, the Court had to decide whether the period provided in § 5852 began to run when the probate court issued the plaintiff letters of authority as temporary personal representative or when the court issued the plaintiff letters of authority as personal representative on a permanent basis. As indicated above, the Court repeatedly referred to § 5852 as the “statute of limitations saving provision.” This language does not clarify whether § 5852 should be considered as solely a saving statute or whether it has additional qualities comparable to statutes of limitations. It cannot be read to have given any meaningful guidance to the bench and bar on the issue whether tolling applied to § 5852. It is beyond any reasonable dispute that Lindsey did not address the issue whether tolling under § 5856(c) applies to § 5852.

Omelenchuk addressed MCL 600.2912b, the statute governing notices of intent. The Court concluded that a limitations period is tolled for the full 182 days, which is the applicable notice period in § 2912b. Omelenchuk, supra at 575. Section 5852 was discussed when the Court was making various calculations under the facts of the case. On February 13, 1994, the decedent died of a heart attack, and on February 14,1994, two personal corepresentatives were appointed. The personal representatives eventually filed a medical malpractice action. The Court noted that if no tolling provision were applicable, the personal representatives had until February 14, 1996 — two years after their appointment — to bring the action. Omelenchuk, supra at 569, 577. This determination was made pursuant to, as stated by the Court, the “two-year limitation period” in § 5852. Id. at 577. On December 11, 1995, the plaintiffs served the defendants with the notice of intent. Id. The Court concluded:

As a result of the notice, the limitation period was tolled one hundred eighty-two days. Rather than expiring on February 14, 1996, the limitation period thus was tolled from December 11, 1995, until June 10, 1996; it then resumed for another sixty-five days until it expired on August 14, 1996. [Id.]

Although not directly addressing the issue whether § 5852 was subject to tolling under § 5856, the Omelenchuk Court’s calculations clearly applied the notice of intent tolling period to § 5852 and the action brought by the personal representatives. Moreover, the Court referred to the two-year period set forth in § 5852 as a “limitation period.” The Waltz Court pointed out that it was unnecessary to have even applied § 5852 in Omelenchuk because the action was timely filed applying tolling to the standard medical malpractice limitations period given the date of the death and the act of alleged malpractice. Waltz, supra at 653-655. But the Waltz Court acknowledged that its calculations in Omelenchuk and the references to § 5852 as providing a limitations period had caused confusion and were erroneous. Id. at 653-654.

As indicated above, Miller addressed the issue whether the six-month discovery provision in MCL 600.5838a(2), applicable to medical malpractice actions, is incorporated in § 5852 as a period of limitations. The Court held that § 5852 does indeed incorporate the six-month discovery rule. Miller, supra at 202. Again, the issue whether § 5856(c) applies to § 5852 was not addressed in Miller. The Miller Court stated, however, that § 5852 is a saving statute and not a statute of limitations. Miller, supra at 202. While this might provide some shaky basis for believing that § 5856(c) would not apply to § 5852, the area of the law was at best muddled considering Omelenchuk and considering that § 5852 does not contain any express language that it is a saving statute and not a statute of limitations. Omelenchuk was not cited in Miller, and remained good law at that point in time. Moreover, Omelenchuk was more on point in my opinion. Waltz was truly a case of first impression in a murky area of the law. One could not have reasonably expected an attorney to read Miller and then, although it had nothing to do with the focus and holding in Miller, pick out the reference to § 5852 as a saving statute and make the leap to analyze this reference in the context of the tolling statute. Even had an insightful attorney made this connection, he or she would most likely have brushed it aside because the Supreme Court itself had applied the tolling statute to § 5852 in Omelenchuk.

The general rule is that judicial decisions are given full retroactive effect, but “a more flexible approach is warranted where injustice might result from full retro-activity.” Pohutski v City of Allen Park, 465 Mich 675, 695-696; 641 NW2d 219 (2002). A holding that overrules settled precedent may properly be limited to prospective application. Id. at 696. This Court should also consider whether a new principle of law was established through a ruling that addressed a matter of first impression that was unforeseeable. Michigan Ed Employees Mut Ins Co v Morris, 460 Mich 180, 190-191; 596 NW2d 142 (1999). As stated in Ousley, supra at 493, prospective application has been deemed appropriate for decisions that overrule clear and uncontradicted case law or that address issues of first impression whose resolution was not clearly foreshadowed. Before Waltz, there did not exist any binding precedent on the particular issue of whether § 5852 was subject to tolling under § 5856(c), but Omelenchuk came the closest to dealing with the issue and most certainly gave guidance to those in the legal community, and it would have been entirely reasonable to rely on Omelenchuk. Waltz found it necessary to partially overrule Omelenchuk, acknowledging the confusion, with the Court stating, “To the limited extent that the above-quoted portion of Omelenchuk might be viewed as sanctioning application of the notice tolling provision to the wrongful-death saving provision, it is hereby overruled.” Waltz, supra at 655. Given that Waltz overruled a prior decision, coupled with the fact that a matter of first impression was being addressed, resulting in a resolution that was not clearly foreshadowed in light of the language in Omelenchuk, and the strained statutory analysis necessary to reach that resolution, it would not be appropriate, fair, and legally sound to apply the decision retroactively. Considering the purpose of the new rule announced in Waltz, the extent of reliance on Omelenchuk, and the lack of statutory language suggesting that § 5852 was not subject to tolling, and the effect of retroactivity on the administration of justice, Pohutski, supra at 696, I would conclude, if it were left to me, that Waltz should be applied prospectively only. In Mazumder, supra at 55 n 10, this Court noted that at least 17 members of this Court, as reflected in published and unpublished decisions, presumed that tolling applied to § 5852. Under such circumstances, how can we now, with any sense of justice, punish counsel, and thereby punish their clients, for making that same presumption and pursuing actions in accordance with this belief.

While I recognize that the “handwriting may be on the wall” that our Supreme Court will apply Waltz retroactively across the board, on further careful consideration the Court may well táke an eraser to the apparent “writing on the wall” in the interest of fundamental fairness and justice. Time will tell.

I respectfully dissent.

1 I recognize that in McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005), I concurred in an opinion that declined to call for a conflict panel in light of the orders issued by the Supreme Court, which I believed indicated the Court’s stance on whether Waltz should be applied retroactively despite a lack of expressed reasoning. Taking into consideration judicial economy and resources, along with the “handwriting on the wall” as reflected in the orders, I thought it more prudent to defer to the Supreme Court with respect to its apparent position on the retroactivity issue and let it make any change in this position if desired, rather than to involve this Court in the laborious conflict process. However, now that a conflict panel has in fact been convened after this Court found that an outcome-determinative issue existed requiring resolution of whether Ousley was correctly decided despite the existence of the Supreme Court orders, I find it appropriate to voice my substantive position and address the merits of applying Waltz retroactively.

[2] 2 A line of cases from this Court has developed that indicates that a final dispositional order issued by the Supreme Court is binding precedent simply when it can be understood. John J Fannon Co v Fannon Products, LLC, 269 Mich App 162, 165-166; 712 NW2d 731 (2005); Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002); Brooks v Engine Power Components, Inc, 241 Mich App 56, 61-62; 613 NW2d 733 (2000), overruled by Kurtz v Faygo Beverages, Inc, 466 Mich 186 (2002); People v Phillips (After Second Remand), 227 Mich App 28, 38 n 11; 575 NW2d 784 (1997); People v Edgett, 220 Mich App 686, 693 n 6; 560 NW2d 360 (1996). Fannon and Evans relied on Brooks, Phillips, and Edgett, while Brooks relied on Phillips. In Phillips and in Edgett, this Court cited Crall, supra at 464 n 8, for the proposition that “Supreme Court peremptory orders are binding precedent when they can be understood.” Phillips, supra at 38 n 11; Edgett, supra at 693 n 6. However, a review of Crall, supra at 464 n 8, reveals no such ruling. Rather, as quoted above, Crall held that an order was binding precedent when the order was a final dispositional order regarding an application and the order contained “a concise statement of the applicable facts and the reason for the decision.” Id. Other cases from this Court have honored the actual language of Crall. Dykes v William Beaumont Hosp, 246 Mich App 471, 483-484; 633 NW2d 440 (2001); Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 591 n 8; 546 NW2d 690 (1996), remanded 455 Mich 863 (1997). I note that the Brooks panel, although citing the language from Phillips regarding orders that can be understood, additionally and correctly cited the language from Crall. Brooks, supra at 62.

3 The pertinent language of Wyatt and Evans, supra at 929, is identical and states:

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration, as on leave granted, of the question 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. MCR 7.302(G)(1). That Court is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application. [Emphasis in original.]

The relevant language of Forsyth, supra at 929, simply provides: “In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration as on leave granted. MCR 7.302(G)(1). That Court is to give the holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application.”

4 I disagree with the majority that the orders in Wyatt and Evans each contain a sufficient statement of the facts, where the language relied on by the majority is simply part of the question framed by the Supreme Court to be addressed on remand. Additionally, the language has nothing to do with retroactivity.

5 MCR 7.215(J)(3)(a) provides, in part, that

the chief judge must poll the judges of the Court of Appeals to determine whether the particular question is both outcome determinative and warrants convening a special panel to rehear the case for the purpose of resolving the conflict that would have been created but for the provisions of subrule (1).

Again, if the Supreme Court orders are deemed controlling, convening a special panel could not have been warranted, yet a majority of the full Court found that the convening of a special panel was indeed warranted.

6 “The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.” Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001).

7 What I find troubling is the majority’s refusal to accept that the members of this Court already determined that it was necessary to substantively address the conflict between Ousley and Mullins on the issue of retroactivity relative to Waltz regardless of the Supreme Court orders.

8 MCL 600.5856 provides, in relevant part:

The statutes of limitations or repose are tolled in any of the following circumstances:

(c) At the time notice is given in compliance with the applicable notice period under [MCL 600.2912b], if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.

Waltz referred to § 5856(d), which, at that time, was the subsection that contained the tolling provision relative to notice periods in medical malpractice actions; the provision was moved to § 5856(c) with minor changes when the statute was amended in 2004. 2004 PA 87.

9 MCL 600.5852 provides:

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 the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.

10 MCL 600.5838a(2) provides, in part, that a plaintiff in a medical malpractice action may commence suit “within 6 months after the plaintiff discovers or should have discovered the existence of the claim ....”

11 Miller’s statement that § 5852 is not a statute of limitations but is rather a saving statute does not appear to be relevant to the holding in the case, in which the Court found that the language of § 5852, limiting claims to those commenced “within 3 years after the period of limitations has run,” allowed a claim to be filed within three years of the end of the six-month discovery period in § 5838a(2), which is a period of limitations.

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Dissenting Opinion

WHITE, J.

(dissenting). For many of the reasons stated by Judge MURPHY and Judge COOPER, I agree that the orders in Evans v Hallal, 472 Mich 929 (2005), Forsyth v Hopper, 472 Mich 929 (2005), and Wyatt v Oakwood Hosp & Med Ctrs, 472 Mich 929 (2005), are informative regarding the Supreme Court’s thinking at the time they were entered, but are not precedential decisions on the question whether Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), should be applied retroactively. Because these orders are not precedential decisions, this Court is duty-bound to address the merits of the conflict between Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004), and Mullins v St Joseph Mercy Hosp, 269 Mich App 586; 711 NW2d 448 (2006). I conclude that Ousley was incorrectly decided.

The question whether a decision should be applied retroactively or prospectively only is an inquiry distinct and separate from the underlying decision. The United States Supreme Court rarely, if ever, decides the applicability of a new rule to other cases in the case in which it is announced. The Michigan Supreme Court has yet to decide whether Waltz should be applied prospectively only or retroactively. It is settled law that no inference can be drawn from the Supreme Court’s denial of leave to appeal in Ousley. Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000); People v Phillips (After Second Remand), 227 Mich App 28, 34-35; 575 NW2d 784 (1997). Further, the decision whether to grant leave to appeal and issue a lawmaking opinion, or to dispose of an individual case by entry of an order directing this Court or a circuit court how to proceed, is one made by the Supreme Court on the basis of a variety of considerations. In Evans,¹ Forsyth², and Wyatt,³ this Court denied the defendants’ applications for leave to appeal. The Supreme Court’s orders in those cases, which were unanimous, are indicative only of a decision not to grant plenary consideration in those cases, and that rather than require those cases to proceed to final judgment before deciding the Waltz issue, this Court should consider those cases as on leave granted, and decide those cases giving full retroactive application to Waltz. That unanimous direction cannot properly be viewed as a decision by the Court on the separate question whether henceforth Waltz, as a matter of decided law and precedent, should be applied retroactively in all cases.⁴ To be sure, the orders may indeed foreshadow the Supreme Court’s ultimate decision on the retroactivity issue, but it is a disservice to the Court to assume that the retroactivity decision is a foregone conclusion, or that if the issue reaches the Court for plenary consideration, the justices will not undertake a careful and considered analysis, informed by briefing, argument, and the decisions of the Ousley and Mullins panels, and of this conflict panel.

From the time the requirement to provide a notice of intent (NOI) was first enacted in 1993, with the concomitant provision that the period of limitations is tolled when the NOI is filed, the provisions were interpreted by the bench and bar as providing for the tolling of the time periods set forth in MCL 600.5852. No case, until Waltz, held otherwise. While it is true that the Supreme Court’s decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), overruled in part by Waltz, supra at 655, did not involve an analysis of the issue presented in Waltz, it is equally accurate to observe that the Court included in its Omelenchuk decision an unambiguous application of MCL 600.5856(d), now 600.5856(c), to § 5852, and, as observed by Judge MURPHY, clearly referred to the two years after the letters of authority were issued as “the two-year limitation period ....” Omelenchuk, supra at 577. This was not inadvertence or sloppiness; rather, it was a reflection of the fact that even after Lindsey v Harper Hosp, 455 Mich 56; 564 NW2d 861 (1997), which itself repeatedly referred to § 5852 as “the statute of limitations savings provision,” the bench and bar understood the statutes to operate as set forth in Omelenchuk.

Similarly, while Miller v Mercy Mem Hosp, 466 Mich 196; 644 NW2d 730 (2002), actually made the distinction that § 5852 is a saving provision and not a statute of limitations, the bench and bar did not conclude from that distinction that the tolling provision of § 5856(d) did not apply to the periods of § 5852. In Fournier v Mercy Community Health Care Sys-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002), decided six months after Miller, this Court did exactly what the Supreme Court did in Omelenchuk and analyzed the case by applying § 5856(d) to § 5852. Further, while the complaint in Omelenchuk would have been timely under the Omelenchuk Court’s decision without regard to whether § 5856(d) was properly applied to § 5852, this was not the case in Fournier. The Fournier Court could have disposed of the case with dispatch, without deciding whether the personal representative tolled the period of limitations by complying with the NOI provision, by observing that the tolling provision does not apply to § 5852. Instead, the Court discussed the operation of § 5852 as it relates to medical malpractice actions, concluded that “the period of limitation expired July 13, 2000, two years after the letters of authority were issued,” Fournier, supra at 466-467, and went on to determine whether the notice was adequate to toll, under § 5856(d), the period of limitations resulting from application of § 5852. The Court concluded that notice had not been given in compliance with MCL 600.2912b and stated:

In this case, Fournier died on July 7,1998. The letters of authority were issued on July 13, 1998. Therefore, the two-year statutory period of limitation began on July 13, 1998, and extended to July 13, 2000. On July 12, 2000, plaintiff mailed six notices of intent to Bruer’s residential address. Because plaintiff did not provide notice “in compliance with” MCL 600.2912b, the limitation period was not tolled by MCL 600.5856(d). Consequently, the limitation period expired on July 13, 2000. Plaintiff filed the complaint on January 10, 2001, well after the limitation period expired. [Fournier, supra at 468-469.]

Had this Court understood that Miller or Lindsey foreshadowed that the consistent and persistent interpretation of the bench and bar, and the consistent practice of both sides of the bar, during the nine years since the NOI and tolling provisions were enacted, including the apparent understanding of the Supreme Court as applied in Omelenchuk, would be rejected as incorrect by the Supreme Court, it would simply have stated that Fournier’s complaint was filed too late under any analysis because the NOI was not sent within the two-year period of limitations, i.e., by July 7, 2000, and the complaint was not filed within two years after the letters of authority were issued.

At argument before the conflict panel, defense counsel characterized the issue presented here as whether this panel should follow the law on retroactivity or reject the correct legal disposition on the basis of vague and emotional considerations of whether retroactive application of Waltz causes hardship or feels right.⁵ This ignores that retroactivity analysis is by its terms concerned with issues of justice. In Lindsey, supra at 68, the Supreme Court explained:

The general rule is that judicial decisions are to be given full retroactive effect. Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). However, where injustice might result from full retroactivity, this Court has adopted a more flexible approach, giving holdings limited retroactive or prospective effect. This flexibility is intended to accomplish the “maximum of justice” under varied circumstances. Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984), citing Williams v Detroit, 364 Mich 231, 265-266; 111 NW2d 1 (1961).

Prospective application of a holding is appropriate when the holding overrules settled precedent or decides an “issue of first impression whose resolution was not clearly foreshadowed.’ ” [Citations omitted.]

While the Lindsey Court did not “find that the balance of justice demands prospective application in [that] case,” id. at 69, the Court did so find in Pohutski v City of Allen Park, 465 Mich 675; 641 NW2d 219 (2002), in which it applied the same flexible approach approved in Lindsey and sought to “ Take into account the total situation confronting it and seek a just and realistic solution of the problems occasioned by the change’ ” in the law. Id. at 695, quoting Placek v Sterling Hts, 405 Mich 638, 665; 275 NW2d 511 (1979). Notwithstanding defendants’ argument, neither this Court nor the Supreme Court should be reluctant to consider the “balance of justice” in determining the retroactivity issue. Such considerations are a necessary part of the reasoned and responsible application of the law of retroactivity.

The experience since the Waltz decision has been that defendants who had never thought to seek dismissal on this basis rushed to the courthouse to file their motions for summary disposition. Plaintiffs’ lawyers who had carefully and meticulously computed and recorded the limitations periods in their cases, and who had sent NOIs within those limitations periods, and defense lawyers who had carefully and meticulously explored every possible defense on behalf of their clients, and who had failed to identify and pursue the Waltz defense, suddenly learned that they, as well as all the judges who understood the statutes to operate as they did, were wrong. It is certainly within the province of the Supreme Court, indeed it is its duty, to correct errors in the interpretation of statutes. However, the experience of the bench and bar before and after Waltz makes clear that Waltz was a law-changing decision. We should not ignore as judges what is apparent to the entire medical malpractice bar, and to plaintiffs, medical defendants, and insurers alike — that all participants in the legal system believed that Omelenchuk correctly applied the law and that Waltz was the first time that understanding was challenged. The proper application of retroactivity law requires that Waltz be applied prospectively only.

1 Evans v Hallal, unpublished order of the Court of Appeals, entered February 11, 2005 (Docket No. 259580).

2 Forsyth v Hopper, unpublished order of the Court of Appeals, entered March 9, 2005 (Docket No. 257907).

3 Wyatt v Oakwood Hosp, unpublished order of the Court of Appeals, entered February 11, 2005 (Docket No. 258235).

4 Respectfully, and without implying that any justice’s decision is a foregone conclusion, I observe that given their opinions on the substantive issue in Waltz, supra at 655 (dissenting opinion by Cavanagh, J., concurred in by Kelly, J.), and on the retroactivity issue in Lindsey v Harper Hosp, 455 Mich 56, 70; 564 NW2d 861 (1997) (dissenting opinion by Kelly, J., concurred in by Cavanagh, J.), it is unlikely that Justices Cavanagh and Kelly, who joined in the Evans, Forsyth, and Wyatt orders, viewed the orders as precedential decisions on the retroactivity issue.

5 Defense counsel argued:

This appears to he a debate between two competing positions, one of which says: read the established rules and principles regarding retroactivity and enforce them in this case, even though some might argue that it causes a hardship; the competing position being: we have a definite and firm conviction that somehow this just doesn’t feel right regardless of what the rules might he regarding retroactivity. I admit that that position is appealing and has a certain emotional persuasiveness to it.

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Dissenting Opinion

COOPER, J.

(dissenting). This panel was convened to decide the issue raised in Mullins v St Joseph Mercy Hosp, 269 Mich App 586, 592; 711 NW2d 448 (2006), whether Ousley v McLaren, 264 Mich App 486, 494-495; 691 NW2d 817 (2004), was correctly decided or was in error in holding that Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), should be applied retroactively. The majority finds, without specifically considering the issues in Ousley, that Waltz is to be applied retroactively based on the precedential value of three peremptory orders from our Supreme Court directing retroactive application in three cases.¹ I disagree with the majority’s analysis of the precedential effect of peremptory orders and would find the three orders at issue do not require this Court to apply Waltz retroactively in other cases. Judge Murphy’s dissent considers the issues in Ousley and Waltz and finds both incorrectly decided. I agree with that dissent, but write separately because I believe there are additional issues to be addressed.

The number and variety of opinions in this case suggest that we are not all really addressing the same question. What seems clear is that the way one frames the question all but dictates the answer. My question is whether retroactive application of Waltz supports the ends of fairness or certainty generally, or leads to just results for individual litigants. My answer is that it is patently unfair to retroactively apply a holding that deprives litigants of a day in court that they clearly had a right to before the holding was written, and that changing the rules in this fashion supports neither certainty nor fairness.

The first issue is the precedential effect, if any, of the Supreme Court’s orders in Evans, Forsyth, and Wyatt. If, as the majority argues, those orders are binding precedent, then this Court would have no alternative to full retroactive application of Waltz. If they are not binding precedent, however, no matter how instructive they may be of the direction our Supreme Court would be likely to take should it agree to decide this issue, we are duty bound as constitutionally elected judges to consider the arguments and decide the case as we deem just and appropriate. We are not bound to follow where we guess the Court might go, and, indeed, we should write to urge the Supreme Court to consider the arguments we find relevant.

The Court denied leave to appeal in Ousley without comment. The lower courts may not reasonably read direction into a denial of leave, because none is given. Subsequently, the Court on one day issued three peremptory orders. Plainly the three peremptory orders state that this Court was to apply Waltz retroactively in those three cases, and those orders govern those specific cases. “Although the Supreme Court speaks through an order, its precedential effect is not clear.... Since the order responds to the particular need created, it may only govern the case presented.” People v Osteen, 46 Mich App 409, 417; 208 NW2d 198 (1973).

Evans was disposed of in the Court of Appeals by denial of leave to appeal, and the Supreme Court’s order remanded and directed the Court to consider “the question 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,” and also to give Waltz “full retroactive application.” Evans, supra. The order in Wyatt was identical. The order in Forsyth remanded without direction as to any specific question to be addressed, but did include direction as to Waltz retroactivity. In none of the three cases is there a published lower court opinion that recites the facts and circumstances of the case such that the bench, bar, and public could be on notice of what facts and circumstances would give rise to this peremptory treatment by the Supreme Court. Absent such context, the orders cannot be read to have application beyond the cases they specifically address.

The three orders lack the statement of reasons and facts required by the Michigan Constitution: “Decisions of the supreme court... shall contain a concise statement of the facts and reasons for each decision.” Const 1963, art 6, § 6. Orders that do include such facts and reasoning have been held to be binding precedent. People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993); Dykes v William Beaumont Hosp, 246 Mich App 471, 483; 633 NW2d 440 (2001). The majority argues that the brief orders do contain sufficient facts and reasons for us to decipher what the Supreme Court meant and therefore have precedential value; it further argues that because the Supreme Court had surely read this Court’s opinion in Ousley and had declined to disturb it, we should assume the retroactivity analysis in Ousley was correct. I disagree. The most that may be read into the three peremptory orders is the Supreme Court’s disposition of those three specific cases.² And the most that can be read into the Supreme Court’s denial of leave in Ousley is that the Court declined to decide the retroactivity issue at that time.

As constitutionally elected judges, we are required to follow precedent but not to prognosticate with regard to what the Supreme Court might do. In any case, trying to predict what the Court might do is a risky business. First, our Supreme Court has established that it does not feel particularly bound by the principle of stare decisis: “We must also recognize that stare decisis is a ‘principle of policy’ rather than ‘an inexorable command,’ and that the Court is not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.” Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000). On the one hand, this justification for overruling precedent acknowledges that even poorly reasoned prior decisions do indeed “govern,” and Waltz, overruling Omelenchuk, impliedly acknowledges the same — that Omelenchuk did indeed govern, confirming that it was settled law and that Waltz therefore merits prospective application only. On the other hand, it suggests that if we try to predict what the Court might do with Mullins, we might very well be wrong.

Second, in addition to reversing precedent set by prior Courts, the current Court has from time to time qualified or clarified its own recent rulings in subsequent decisions. Relevant to the core issue here, the Court openly acknowledged in Waltz that its words in Omelenchuk were “imprecise,” Waltz, supra at 654, but that is not the only example of correction or clarification. For example, in People v Mendoza, 468 Mich 527; 664 NW2d 685 (2003), the Court readdressed the meaning of “lesser included offense,” which it had spoken to just the year before in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). In that pair of cases, there was sufficient confusion that the Mendoza majority expressly disagreed with the concurrence’s “mischaracterization” of Cornell. Mendoza, supra at 533 n 5. With all due respect, if the justices of the Court cannot agree about what they said and meant, those of us not privy to their discussions ought not read more into their written words than is expressly there.

Finally, attempting to predict what the Court might do is risky because in some areas there have been unpredictable decisions. After all, who would have predicted the anomalous outcome of Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004), finding a claim time-barred, but allowing plaintiff to proceed because “[t]he equities of this case, however, compel a different result”?

Because I do not believe we should decide cases based on what we think the Supreme Court might or even probably would do, I would not give the three peremptory orders binding precedential effect.

The next issue then is whether Ousley was correctly decided, because if it was, then we would be bound to follow it. However, I agree with Judge MUKPHY’s statement and his conclusion that it was incorrectly decided. Because I would find the Ousley Court was incorrect in concluding that Waltz did not decide an issue of first impression, the resolution of which was not clearly foreshadowed, I would find that Waltz should be applied prospectively only.

In Michigan, prospective application of binding decisions “is generally ‘ “limited to decisions which overrule clear and uncontradicted case law.” ’ ” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 587; 702 NW2d 539 (2005) (citation omitted). We also apply prospectively only decisions that address “an issue of first impression whose resolution was not clearly foreshadowed.” Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997) (citations and punctuation omitted). What these criteria have in common is a deference to twin concerns that sound in due process: fairness and fair notice. This at first glance appears to lead to a due process argument, but the right plaintiff is here deprived of does not rise to the level of the life, liberty, or property rights protected by the state and federal constitutions. Although not a violation of a constitutionally protected due process right, retroactivity in this case offends general expectations of the legal process:

[Tjhe presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” [Landgraf v USI Film Products, 511 US 244, 265; 114 S Ct 1483; 128 L Ed 2d 229 (1994) (citation omitted).]

This Court in Ousley failed to consider the import of these due process concerns in determining that the state Supreme Court’s decision in Waltz should be applied retroactively. The violation of accepted standards of fair notice was articulated by Judge O’CONNELL in his dissent in McLean v McElhaney, 269 Mich App 196, 207; 711 NW2d 775 (2005): “The finest legal augur with the keenest sight and all the birds in the autumn sky could not have anticipated Waltz’s outcome with enough certainty to provide rudimentary counsel to a prospective client.”

Omelenchuk was applied by courts and relied on by counsel for four years before the Supreme Court overruled it. The number of cases awaiting the outcome of the debate about retroactive application of Waltz, or already disposed of under the harsh dictates of Ousley, confirms that the bar indeed did not anticipate Waltz’s outcome. To deprive these plaintiffs of their day in court creates the situation warned of in Pohutski v City of Allen Park, 465 Mich 675, 699; 641 NW2d 219 (2002), where the Court declined to apply its holding retroactively because if it did thus apply, plaintiffs in pending cases would “become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.” Plainly, retroactive application of Waltz violates any reasonable sense of fair notice, and it is patently unfair.

Our Supreme Court has listed three factors to be weighed when considering whether a case warrants prospective application: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice. Pohutski, supra at 696. All three of these factors speak to fairness and the balancing of interests.

On one side of the balancing equation rests an interest in certainty and predictability in proceedings, and that interest plainly is impeded by allowing stale claims to proceed. See Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 285 n 12; 696 NW2d 646 (2005). But the claims at issue here are not stale claims plaintiffs are unfairly trying to revive with procedural trickery; they are claims that were valid when the plaintiffs started down their legal paths, following advice from their attorneys that was then entirely sound, but which now the courts are attempting to foreclose. Certainty and predictability are by no means served by a system that changes the rules in a way that changes the outcome midway through a claim. Retroactively applying a rule that limits a previously accepted filing time does more than create uncertainty: it affirmatively precludes claimants from timely filing even if their intended timeline comported with the law as it stood when they developed their legal strategies.

The Waltz Court reasoned that the clear and plain language of the tolling provision of § 5856 states that it applies only to statutes of limitation, so parties should not now be surprised that it does not apply to § 5852 since § 5852 is a saving statute. However, the Waltz majority had one interpretation of the interplay between the statutes, and the dissent had another. Justice CAVANAGH’s dissent in Waltz begins by asserting that the majority’s holding “has the practical effect of shortening the period the Legislature expressly permits for bringing wrongful death actions.” Waltz, supra at 655-656.

In light of the confusion, while awaiting clarification from the Legislature, the courts are best served by allowing parties to proceed by following the law as it existed when their claims accrued, which means applying Waltz prospectively only. To do otherwise would squarely favor the form over the substance of the affected parties’ claims; fairness would be sacrificed entirely to certainty, creating an imbalance that would doubtless have effects beyond the interests of the few plaintiffs still eligible to file if Waltz is not applied retroactively.³

What this case really boils down to is fundamental fairness, and because I find that it would be unfair to apply Waltz retroactively, I would resolve this conflict in favor of Mullins and against Ousley. Because the majority has reached a different conclusion, I add that courts bound by the precedent created by the majority today should consider equitable tolling as it was applied in Mazumder v University of Michigan Bd of Regents, 270 Mich App 42; 715 NW2d 96 (2006). The majority declines to reach this issue because the holding of Mazumder has been challenged and is being considered by a separate and distinct conflict panel, although the issues before that panel and the issues before this panel are plainly inextricably intertwined. Ward v Siano, 270 Mich App 584; 718 NW2d 371 (2006). I believe consideration of the equitable tolling issue is essential to full analysis of the conflict between Ousley and Mullins.

The role of the judiciary has always been to provide the citizenry with remedies that back up the rights granted them by the other branches of government. Revoking those remedies is antithetical to that purpose. When the law operates to revoke a remedy, as the majority asserts it does here, the courts must rely on other tools to ensure rights are protected. This Court in Mazumder did just that, applying equitable tolling to allow plaintiff to proceed with a claim that would otherwise be time barred. The Court explained that “[t]he doctrine of equitable or judicial tolling ‘must and should be rarely invoked’ only ‘to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action ....’” Mazumder, supra at 61 (citation omitted). And the Court reasoned that the facts of the case merited this rare exercise of the equitable approach because “[plaintiff’s failure to comply with the statute of limitations was the product of an understandable misinterpretation of the notice tolling provision, resulting from not only the appellate courts’ interpretation of the statutes at issue, but also from the presumed legislative intent.” Id. at 62.

We are presented with a similar situation here, where plaintiffs failure to comply with the applicable limitations period was not only understandable but predictable, given the accepted state of the law when plaintiffs claim accrued. This Court in Ward, supra at 601, cited Judge HOEKSTRA’s dissent in Mazumder, arguing that equitable tolling is inappropriate because “ ‘it cannot be said that plaintiff exercised reasonable diligence in the timely pursuit of her claim, in choosing to rely on Omelenchuk to afford the relevant statutes a broad interpretation not supported by the plain language of the statute....’” But this argument turns on what “reasonable diligence” meant at the time in question, not retrospectively, after Waltz and Ousley were decided and plaintiffs were stuck with the choices they had made under an earlier state of the law. Plaintiffs who file anywhere inside the limitations period are reasonably diligent, and these plaintiffs were working with a version of the limitations period that was only declared to be shorter after it was too late for them to file within the newly abbreviated period.

The courts retain equitable discretion to engage in a case by case inquiry that balances fairness and certainty for the parties, and such a case by case analysis will lead in some cases, as it should in this case, to equitable tolling as the appropriate remedy. This Court in Mullins reasoned that Waltz should not apply retroactively to deprive this plaintiff of a cause of action because “[t]he time limits provided in Omelenchuk reflected the current state of the law when the original personal representative, plaintiffs father, filed suit.” Mullins, supra at 591. This plaintiff and others similarly situated should not be denied their day in court on the basis of a procedural rule that empties the substance from substantively sound claims. I would also ask the Legislature to speak more plainly as to its intent in the morass of statutes that govern plaintiffs’ procedures for bringing wrongful death and medical malpractice claims, in order to undo the injustice done by retroactively applying Waltz.

I would resolve this conflict in favor of the majority in Mullins.

1 Evans v Hallal, 472 Mich 929 (2005); Forsyth v Hopper, 472 Mich 929 (2005); Wyatt v Oakwood Hosp & Med Ctrs, 472 Mich 929 (2005).

2 “[T]he precedential effect of a summary affirmance can extend no farther than ‘the precise issues presented and necessarily decided by those actions.’ A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment. Questions which ‘merely lurk in the record’ are not resolved, and no resolution of them may be inferred.” Illinois State Bd of Elections v Socialist Workers Party, 440 US 173, 182-183; 99 S Ct 983; 59 L Ed 2d 230 (1979) (citations omitted). See also Anderson v Celebrezze, 460 US 780, 784; 103 S Ct 1564; 75 L Ed 2d 547 (1983).

3 Prospective application of Waltz will affect the time to file for plaintiffs whose claims did not accrue until after that decision, but at least it will not reach back in time and revoke causes of action upon which plaintiffs had every reason to rely.

Case Details

Case Name: Mullins v. St Joseph Mercy Hospital

Court Name: Michigan Court of Appeals

Date Published: Oct 2, 2006

Citations: 722 N.W.2d 666; 271 Mich. App. 503; Docket 263210

Docket Number: Docket 263210

Court Abbreviation: Mich. Ct. App.