# Nadia Maria Packard v. Paul Thomas Brown

> Michigan Court of Appeals · August 22, 2019

URL: https://www.frixlaw.com/law-library/cases/4432585

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** August 22, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4432585

## How later opinions describe it (automated extraction)

- explaining that, although an unpublished opinion is not precedentially binding, MCR 7.215(C)(1), such an opinion can be considered instructive or persuasive

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

NADIA MARIA PACKARD and TONY R. UNPUBLISHED
PACKARD, August 22, 2019

Plaintiffs-Appellants,

v No. 344720
Monroe Circuit Court
PAUL THOMAS BROWN, LC No. 18-140616-NI

Defendant-Appellee,

and

WESTFIELD INSURANCE COMPANY,

Defendant.

Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

PER CURIAM.

In Michigan, it is not possible to sue a deceased person. It is possible to sue the estate of
a deceased person, but only after the appropriate probate court has opened a decedent’s estate.
Because the plaintiff in this case sued a person whom she knew to be deceased, and only later
opened a decedent’s estate in probate court, this lawsuit was not properly commenced.
Furthermore, although the limitations period was suspended for four months following the
decedent’s death, it resumed after that time, and plaintiff never filed suit against the estate. We
therefore affirm the trial court’s order dismissing plaintiff’s action because it is barred by the
applicable limitations period.

I. BACKGROUND

This case arises from a January 8, 2015 motor-vehicle accident. Plaintiffs, Nadia Packard
and Tony Packard, allege that defendant Paul Brown was at fault in causing the accident.
Although both plaintiffs joined in filing the lawsuit, Tony Packard alleged only a claim for loss
of consortium. Because his claims are derivative of his wife’s claims, this opinion will refer to

-1-
Nadia Packard as plaintiff, in the singular only. Moreover, there are two trial-court actions
relevant to this appeal, a probate matter in Lenawee Probate Court and a civil action in Monroe
Circuit Court. This is an appeal from the Monroe Circuit Court, and, therefore, that court is
referred to as the trial court.

On June 3, 2017, Brown died. Six months later, on January 3, 2018, plaintiff filed a
complaint against two defendants: Brown and plaintiff’s insurance carrier, Westfield Insurance
Company. Plaintiff alleged claims of negligence and loss of consortium against Brown and
alleged claims for uninsured and underinsured motorist coverage against Westfield. Plaintiff
filed the complaint only five days before the expiration of the three-year limitations period
contained in MCL 600.5805(10) (actions for damages for injury to a person).1

When plaintiff filed the lawsuit, she knew that Brown was deceased. Plaintiff’s
complaint alleged that Brown, “at all times pertinent hereto, was an individual residing in the
Township of Riga, County of Lenawee, State of Michigan” (emphasis added). In her brief on
appeal, plaintiff concedes that she learned of Brown’s death in November 2017.

Plaintiff explored the possibility of opening an estate for Brown in the applicable probate
court, before the filing of her lawsuit, so that she could file the lawsuit against the estate.
Plaintiff determined, however, that the probate court would not open an estate and issue letters of
authority to a personal representative before January 8, 2018. Given this, plaintiff decided to file
a lawsuit against Brown personally, even though she knew that he was deceased, and
subsequently open a decedent’s estate in the probate court.

On January 12, 2018, nine days after she filed the complaint, plaintiff filed a statement in
the trial court revealing Brown’s death, under MCR 2.202(A)(1)(b). We note that plaintiff did
not file the statement revealing Brown’s death contemporaneously with the complaint, even
though she knew that Brown was deceased well before she filed the complaint. In that statement,
plaintiff notified the trial court that Brown died on June 3, 2017, in Lenawee County, Michigan,
and that a search of the Lenawee County probate court records confirmed that an estate had not
yet been opened.

On January 23, 2018, the Lenawee Probate Court opened a decedent’s estate for Brown
and issued letters of authority for personal representative, naming plaintiff’s counsel, Gary
Bloom, as the personal representative of the estate. On January 26, 2018, plaintiff’s counsel
served Brown’s copy of the summons and complaint on plaintiff’s counsel, acting in his capacity
as the personal representative of Brown’s estate. Plaintiff’s counsel then notified Brown’s

1
The Legislature amended MCL 600.5805 through 2018 PA 183, effective June 12, 2018.
When the trial court considered plaintiff’s motion, the portion of the statute containing the three-
year limitation period applicable to plaintiff’s claim was MCL 600.5805(10). After the 2018
amendments, the three-year limitations period was renumbered as MCL 600.5805(2). The
amendments to the statute are not material to the questions presented in this case.

-2-
insurer of the existence of the lawsuit and the insurer hired legal counsel to appear in this matter,
ostensibly on Brown’s behalf.

On February 6, 2018, more than three years after the date of the motor-vehicle accident,
plaintiff filed a motion for substitution of party. Plaintiff alleged that the motion was authorized
under MCR 2.202 and MCL 600.5852. Plaintiff claimed, “Prior to service of the summons and
complaint,” plaintiff learned that Brown had died and that no probate estate had been opened on
Brown’s behalf. In addition, plaintiff stated that she had opened a probate estate for Brown in
the Lenawee Probate Court and that the probate court had appointed Bloom as personal
representative of the estate. Plaintiff requested that the trial court substitute Brown’s estate as
the defendant in this case and issue a new summons in the name of the estate so that plaintiff
could effectuate service on the estate. This request for a new summons in the name of the estate
appears to be an implicit recognition that service of Brown’s copy of the summons and
complaint on the personal representative of the estate was improper and that service on an
existing defendant had not yet been accomplished.

Westfield filed a brief opposing plaintiff’s motion for substitution of party, arguing that
the trial court should deny the motion “because of the obvious conflict of interest” created by the
appointment of plaintiff’s counsel as personal representative of Brown’s estate. Westfield
argued that plaintiff and her counsel were creditors of the estate and, therefore, the probate court
should not have appointed plaintiff’s counsel as personal representative of the estate. Before the
trial court heard oral argument on plaintiff’s motion for substitution of party, plaintiff filed a
stipulation to dismiss Westfield from the lawsuit. In accordance with that stipulation, the trial
court entered an order dismissing Westfield from the case, with prejudice, based on the parties’
stipulation.

Counsel for Brown’s insurer then filed an appearance in this case, purportedly on behalf
of Brown. Counsel for Brown’s insurer also filed an answer to plaintiff’s complaint, affirmative
defenses, and a reliance on plaintiff’s jury demand. The trial court never addressed whether
counsel for Brown’s insurer properly represented Brown, given that Brown was deceased, the
probate court had opened a decedent’s estate for Brown and appointed a personal representative
for that estate, and counsel for Brown’s insurer clearly did not represent the estate. It is unclear
to this Court how counsel for Brown’s insurer could have validly represented Brown in the trial
court, when Brown died over eight months before counsel became involved in the lawsuit.

Regardless, counsel for Brown’s insurer filed a response opposing plaintiff’s motion
seeking substitution of a party. Counsel argued that plaintiff’s action was barred by the running
of the three-year limitations period and that the tolling provision of MCL 600.5852(1) did not
apply. Counsel also argued that a conflict of interest existed because plaintiff’s counsel had been
appointed as personal representative of the estate, and plaintiff’s counsel was therefore
attempting to represent simultaneously both the plaintiff and the defendant. Counsel also argued
that the Monroe Circuit Court somehow had authority to remove the personal representative
appointed by the Lenawee Probate Court.

During a hearing held on March 21, 2018, the trial court considered plaintiff’s motion to
substitute Brown’s estate as the defendant in this case. At the hearing, the trial court indicated
that it denied plaintiff’s motion, but the trial court did not enter a written order memorializing

-3-
that decision until May 2, 2018. Plaintiff’s request to substitute Brown’s estate as defendant was
before the trial court on at least two additional occasions, styled as a “re-motion” for substitution
of the estate as defendant. After conducting an additional hearing, the trial court denied
plaintiff’s motion and dismissed the lawsuit. The trial court held that the limitations period had
expired before the probate court opened the estate and appointed a personal representative.

Plaintiffs appeal as of right the trial court’s order denying the re-motion for substitution
of a party and dismissing this lawsuit.

II. ANALYSIS

A. STANDARDS OF REVIEW

This Court reviews a trial court’s ruling on a motion for substitution for an abuse of
discretion. Mather Investors, LLC v Larson, 271 Mich App 254, 260; 720 NW2d 575 (2006).
“An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable
and principled outcomes.” Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257
(2016). When a trial court’s decision is grounded in an erroneous interpretation or application of
the law, it results in an abuse of discretion. See Denton v Dep’t of Treasury, 317 Mich App 303,
314; 894 NW2d 694 (2016). Although the trial court did not identify the court rule under which
it dismissed plaintiff’s action, it appears that the trial court acted under MCR 2.116(I). We
review de novo a trial court’s ruling under MCR 2.116(I). Sherry v East Suburban Football
League, 292 Mich App 23, 34; 807 NW2d 859 (2011).

To the extent this appeal requires this Court to interpret statutory language, “[t]he rules of
statutory interpretation are well established.” Pike v Northern Mich Univ, ___ Mich App ___,
___; ___ NW2d ___ (2019) (Docket No. 344083); slip op at 6, lv pending.

[This Court’s] primary goal when interpreting a statute is to discern the legislative
intent and the specific language used is the most reliable evidence of its intent.
Thus, when the language of a statute is unambiguous, no judicial construction is
permitted and the statute must be enforced as written in accordance with the plain
and ordinary meaning of its words. [Id. (citations omitted).]

This Court interprets court rules using the same principles that govern the interpretation of
statutes. Marketos v American Employers Ins Co, 465 Mich 407, 412-413; 633 NW2d 371
(2001).

Plaintiff also raises a claim that the trial court did not have subject-matter jurisdiction to
challenge the letters of authority issued by the Lenawee Probate Court. A party may raise a
challenge to the trial court’s subject-matter jurisdiction at any time, and such a challenge
presents a question of law that we review de novo. Adams v Adams, 276 Mich App 704, 708-
709; 742 NW2d 399 (2007).

B. JURISDICTION OVER APPOINTMENT OF PERSONAL REPRESENTATIVE

On appeal, plaintiff argues that the trial court lacked jurisdiction to challenge the decision
of the Lenawee Probate Court appointing plaintiff’s counsel as personal representative of
-4-
Brown’s estate. MCL 700.1302(a)(ii) establishes that the probate court has exclusive legal and
equitable jurisdiction over the administration and settlement of an estate, and the appointment of
a personal representative is clearly part of the administration and settlement of an estate. See
MCL 700.3202. Therefore, the trial court in this case had no authority to disturb the probate
court’s appointment of plaintiff’s counsel as the personal representative for Brown’s estate.

Yet, despite its expression of disagreement with the probate court’s appointment of
plaintiff’s counsel as personal representative for the estate, the trial court did not attempt to
remove the personal representative and did not base its denial of plaintiff’s motion for
substitution of party on this ground. Therefore, the fact that the trial court lacked jurisdiction
over the appointment of the personal representative is irrelevant to our review of the trial court’s
ruling denying plaintiff’s motion for substitution of party and dismissing the lawsuit based on the
expiration of the limitations period.

Plaintiff represents on appeal that the probate court appointed a successor personal
representative after the trial court’s ruling and after the filing of this appeal. Because this
information is not part of the record on appeal, we decline to consider it. In any event, the
appointment of a successor personal representative is not relevant to the question whether
plaintiff’s action is barred by the applicable limitations period.

C. PLAINTIFF IMPROPERLY SUED A DECEASED PERSON

Plaintiff argues on appeal that the trial court abused its discretion in denying her request
to substitute Brown’s estate as defendant. A close review of the trial court’s ruling from the June
20, 2018 hearing reflects its determination that plaintiff should have named the estate as a
defendant, instead of naming the decedent as a defendant in the complaint. The trial court’s
conclusion was formed based on a correct interpretation of the Michigan Court Rules, which
address a party’s capacity to be sued. MCR 2.201 provides in pertinent part:

(C) Capacity to Sue or Be Sued

(1) A natural person may sue or be sued in his or her own name. [Emphasis
added.]

Plaintiff cites no authority for the proposition that it is possible to sue a deceased person in the
courts of the state of Michigan.

This Court considered a similar situation in Potter v Devine, unpublished per curiam
opinion of the Court of Appeals, issued June 20, 2013 (Docket No. 308878). In that case, the
plaintiff sued an individual for injuries allegedly sustained in a motor-vehicle accident.
Unbeknownst to the plaintiff, the individual defendant passed away approximately six months
before the plaintiff filed her lawsuit. Id. at 1-2. This Court concluded unequivocally that “a
deceased person cannot participate in litigation” and “a deceased person cannot be sued as a
matter of law.” Id. at 4. We agree with the analysis in Potter on this point of law. Paris
Meadows, LLC v Kentwood, 287 Mich App 136 n 3; 783 NW2d 133 (2010) (explaining that,
although an unpublished opinion is not precedentially binding, MCR 7.215(C)(1), such an
opinion can be considered instructive or persuasive).

-5-
Plaintiff filed this action against Brown, a deceased person, although the record is clear
that plaintiff, when she filed the complaint, was aware that Brown was deceased. Therefore, at
the time she filed her complaint, the named defendant, Brown, did not have the capacity to be
sued because Brown was no longer a natural person who could “sue or be sued in his or her own
name.” MCR 2.201(C)(1). On the date when she filed this lawsuit, Brown’s estate had not yet
been opened, and plaintiff did not file the lawsuit in the name of the estate. Furthermore,
although plaintiff argues on appeal that she filed the lawsuit against Brown “in anticipation of
the probate estate being opened,” this is in direct violation of MCL 700.3104(1), which states
that “a proceeding to enforce a claim against a decedent’s estate or the decedent’s successors
shall not be revived or commenced before the appointment of a personal representative.”

Our Supreme Court made clear the proper procedure in Williams v Grossman, 409 Mich
67, 81; 293 NW2d 315 (1980), where the Court explained, “An action against a decedent is
maintained by naming his personal representative as the defendant. If administration has not
been sought by a spouse or other family member, a creditor may seek to have an administrator
appointed.” Thus, suing the decedent himself is inappropriate and ineffectual. Instead, a
plaintiff must first petition the probate court for the opening of a decedent’s estate and the
appointment of a personal representative, and then the plaintiff may file a lawsuit against the
estate for the allegedly tortious conduct of the decedent.

To the extent the trial court recognized that the complaint filed by plaintiff did not
comply with the court rules—because it named a deceased person as a party—the trial court’s
conclusion was correct as a matter of law. See MCR 2.201(C)(1); MCR 2.202(A)(1)(b).
Plaintiff’s lawsuit against Brown was not properly commenced because Brown was already
deceased when plaintiff filed the lawsuit. Plaintiff even admits in her brief on appeal that her
“manner of pursuing [her] claims was procedurally imperfect,” and we agree with that
assessment.

D. WAS PLAINTIFF’S CAUSE OF ACTION TIME-BARRED?

Plaintiff maintains, however, that even in the face of this “procedural[] imperfect[ion],”
the trial court should have allowed the substitution of the later-created estate as a defendant in
place of Brown. The trial court denied plaintiff’s motion based on its conclusion that the three-
year limitations period applicable to the action expired before the estate was created.

On appeal from this ruling, plaintiff essentially argues that the three-year limitations
period was tolled by her improper filing of a lawsuit against a deceased person, and the opening
of the decedent’s estate after the expiration of the limitations period should somehow relate back
to the date of her improper filing. We conclude that the three-year limitations period applicable
to this action was suspended by operation of MCL 700.3802 and that it expired on May 8, 2018.
Yet, because a deceased person cannot be sued as a matter of law and because plaintiff never
filed suit against the decedent’s estate, we conclude that plaintiff’s action was nonetheless barred
by the expiration of the limitations period.

-6-
1. MCL 600.5852(1)

When the trial court issued its decision in this matter, the applicable statute of limitations
for plaintiff’s claim was set forth in MCL 600.5805(10) (now MCL 600.5805(2)). The statute
provided in pertinent part:

(1) A person shall not bring or maintain an action to recover damages for
injuries to persons or property unless, after the claim first accrued to the plaintiff
or to someone through whom the plaintiff claims, the action is commenced within
the periods of time prescribed by this section.

* * *

(10) Except as otherwise provided in this section, the period of limitations
is 3 years after the time of the death or injury for all actions to recover damages
for the death of a person or for injury to a person or property. [MCL 600.5805.]

In the trial court, plaintiff argued that MCL 600.5852(1) tolled the running of the limitations
period. The statute 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 that 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. [MCL 600.5852(1).]

As counsel for Brown’s insurer pointed out in the trial court, this statute is clearly
inapplicable to plaintiff’s lawsuit. The statute authorizes the personal representative of an estate
an additional two years in which to file an action, despite the expiration of the applicable
limitations period for that action, if the decedent passed away either before the limitations period
expired or within 30 days after the limitations period expired. This is not a lawsuit brought by
the personal representative of an estate for injuries to the decedent, and MCL 600.5852(1) does
not toll the running of the limitations period in this case.

2. MCL 600.5856

On appeal, plaintiff argues that the running of the three-year limitations period should be
tolled because she filed her complaint against the decedent with the intent of later substituting
the estate for the decedent. To toll the limitations period, a plaintiff must satisfy the
requirements of MCL 600.5856. The statute provides in pertinent part:

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

(a) At the time the complaint is filed, if a copy of the summons and
complaint are served on the defendant within the time set forth in the supreme
court rules.

-7-
(b) At the time jurisdiction over the defendant is otherwise acquired.
[MCL 600.5856.]

The filing of a complaint alone does not toll the applicable statute of limitations. “[I]f one does
not perform any actions specified by § 5856, the statute of limitations is not tolled and therefore
the period of limitations continues to run after the complaint has been filed.” Gladych v New
Family Homes, Inc, 468 Mich 594, 598-599; 664 NW2d 705 (2003). In this case, plaintiff did
not satisfy the requirements of MCL 600.5856. Although plaintiff filed a complaint, she did not
serve it on Brown—it was physically impossible to do so because Brown was already deceased.
Furthermore, the trial court never acquired jurisdiction over Brown because he was already
deceased when plaintiff filed the complaint. Therefore, the limitations period was not tolled by
MCL 600.5856(a) or (b). See Potter, unpub op at 5.

3. MCL 700.3802(2)

Plaintiff briefly argues on appeal that the three-year limitations period was “suspended”
when Brown died by operation of MCL 700.3802(2). An issue is not preserved for appeal unless
it was presented to and decided by the trial court, Forest Hills Coop v Ann Arbor, 305 Mich App
572, 615; 854 NW2d 172 (2014), and appellate consideration of unpreserved claims of error is
disfavored, People v Frazier, 478 Mich 231, 241; 733 NW2d 713 (2007). Plaintiff did not raise
the potential applicability of this statutory section in her trial-court briefing. Plaintiff did,
however, briefly mention the statute during oral argument on her motion for substitution of party,
in the context of arguing that a personal representative of an estate is permitted to bring a claim
against the estate.

Because plaintiff did not directly raise the potential applicability of this statutory section
in the trial court, and the trial court therefore did not decide the issue, this argument is
unpreserved for appellate review. Yet, this Court “may review an unpreserved issue if it is an
issue of law for which all the relevant facts are available.” Vushaj v Farm Bureau Gen Ins Co of
Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). Therefore, we will briefly address the
issue.

MCL 700.3802 provides, in pertinent part:

(1) Unless an estate is insolvent, the personal representative, with the
consent of all interested persons whose interests would be affected, may waive a
statute of limitations defense available to the estate. If a statute of limitations
defense is not waived, a claim that was barred by a statute of limitations at the
time of the decedent’s death shall not be allowed or paid.

(2) The running of a statute of limitations measured from an event other
than death or publication for a claim against a decedent is suspended during the 4
months following the decedent’s death but resumes after that time as to a claim
not barred under this part.

First, we note that the first sentence of MCL 700.3802(1) does not apply in this case
because plaintiff has presented no evidence that the personal representative of the estate waived

-8-
the statute of limitations defense to this action. When the personal representative has not waived
the statute of limitations defense, MCL 700.3802(1) provides that plaintiff’s claim “shall not be
allowed or paid” if the claim “was barred by a statute of limitations at the time of the decedent’s
death.” Because the limitations period in this case did not expire until after Brown’s death, the
claim was not “barred by a statute of limitations at the time of the decedent’s death,” and the
second sentence of MCL 700.3802(1) does not apply.

Because MCL 700.3802(1) does not bar plaintiff’s claim, MCL 700.3802(2) provides that
the running of the limitations period was “suspended” during the four months following Brown’s
death. Therefore, the limitations period was suspended from June 3, 2017 to October 3, 2017, at
which time it began to run again, and it subsequently expired on May 8, 2018—four months later
than it would have expired but for Brown’s death. See Potter, unpub op at 6.

Yet, critically, plaintiff never sued the estate. Plaintiff’s January 3, 2018 filing of this
lawsuit against Brown cannot serve as the filing of a lawsuit against Brown’s estate because “a
proceeding to enforce a claim against a decedent’s estate . . . shall not be commenced before the
appointment of a personal representative,” which occurred on January 23, 2018. Nothing the
trial court did in this case precluded plaintiff from filing a separate lawsuit against the estate
before May 8, 2018. Although the three-year limitations period applicable to this action was
suspended by operation of MCL 700.3802(2), plaintiff did not file suit against the estate before
the limitations period expired. Therefore, MCL 700.3802(2) does not save plaintiff’s lawsuit.

III. CONCLUSION

We affirm the trial court’s ruling that plaintiff’s action is barred by the expiration of the
statutory-limitations period. Plaintiff’s lawsuit against Brown was not properly commenced
because Brown was already deceased when plaintiff filed the lawsuit, and it is not possible to sue
a deceased person in Michigan. Plaintiff’s filing of the improper complaint against Brown
cannot qualify as the filing of a complaint against the estate, which did not yet exist on the date
the complaint was filed, because “a proceeding to enforce a claim against a decedent’s estate or
the decedent’s successors shall not be revived or commenced before the appointment of a
personal representative.” MCL 700.3104(1). Although the limitations period was suspended
during the four months following the decedent’s death, it resumed after that time, and plaintiff
did not file suit against the estate before that extended limitations period expired. Therefore,
plaintiff’s action is barred by the expiration of the statutory limitations period, and the trial court
correctly denied plaintiff’s motion for substitution of party and correctly dismissed the lawsuit in
its entirety.

Affirmed. Defendant, having prevailed in full, may tax costs under MCR 7.219(F).

/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher
/s/ Brock A. Swartzle

-9-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4432585. Public record. Not legal advice.