Paul Marsack v. Estate of Laura Gabriel

Order Michigan Supreme Court Lansing, Michigan January 25, 2013 Robert P. Young, Jr., Chief Justice 145239 Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack, PAUL MARSACK, Justices Plaintiff-Appellee, v SC: 145239 COA: 291153 Sanilac CC: 08-032206-NI CLAUDIA MAEDEL, Personal Representative of the Estate of LAURA GABRIEL, Defendant-Appellant, and HASTINGS MUTUAL INSURANCE COMPANY, Defendant. ____________________________________/ On order of the Court, the application for leave to appeal the May 3, 2012 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and we REMAND this case to the Sanilac Circuit Court for entry of summary disposition in favor of defendant Claudia Maedel. Because “MCR 2.102 does not provide the authority to issue a so-called ‘third’ summons,” Hyslop v Wojjusik, 252 Mich App 500, 506 (2002), plaintiff’s initial complaint “is deemed dismissed without prejudice” as to Maedel. MCR 2.102(E)(1). Because plaintiff did not file a new complaint until after the three-year statute of limitations expired, MCL 600.5805(10), and this action is not “commenced by the personal representative of the deceased person” to toll the statute of limitations pursuant to MCL 600.5852, defendant is entitled to summary disposition. MCR 2.116(C)(7). I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. January 25, 2013 _________________________________________ h0122 Clerk