If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

________________________

*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CONNIE M. EVERSOLE, Personal Representative

of the ESTATE OF CHRISTOPHER P.

EVERSOLE,

Plaintiff-Appellant,

FOR PUBLICATION

June 13, 2024

9:05 a.m.

v No. 366556

Oakland Circuit Court

JANNELLE NASH and ORION FAMILY

PHYSICIANS, PC,

Defendants-Appellees.

LC No. 2023-198036-NH

Before: MURRAY, P.J., and RIORDAN and D. H. SAWYER*, JJ.

MURRAY, P.J.

In this wrongful-death medical-malpractice action, plaintiff, Connie M. Eversole, Personal 

Representative of the Estate of Christopher P. Eversole, appeals as of right the final order granting 

defendants, Jannelle Nash and Orion Family Physicians, P.C., summary disposition pursuant to 

MCR 2.116(C)(5) (plaintiff lacked legal capacity to sue) and (C)(7) (claim barred by statute of 

limitations) on the basis that plaintiff’s appointment as the estate’s personal representative did not 

relate back to the time she filed the complaint on behalf of the estate. We reverse and remand for 

further proceedings.

I. BACKGROUND

According to plaintiff, the decedent, her late husband, passed away on January 24, 2018. 

More than four years later, on July 1, 2022, plaintiff’s attorney served defendants with a “Notice 

of Intent” to file a medical-malpractice claim, which identified the claimant as “The Estate of 

Christopher P. Eversole, deceased, via Connie M. Eversole, Christopher’s wife, and anticipated 

Personal Representative of his Estate.” Plaintiff then commenced this medical-malpractice and 

wrongful-death action on January 4, 2023. The complaint was brought in the name of “Connie M. 

Eversole As Personal Representative of the Estate of Christopher P. Eversole, Deceased,” and 
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plaintiff’s attorney signed it. However, plaintiff had not yet been appointed personal representative 

of the estate. Instead, on January 30, 2023, 26 days after plaintiff filed this action, the probate 

court issued letters of authority appointing plaintiff personal representative of Eversole’s estate.

Defendants promptly moved for summary disposition under MCR 2.116(C)(5) and (C)(7),

arguing, relevant to the issues on appeal, that plaintiff lacked the legal capacity to sue on behalf of 

the estate because, under MCL 600.2922(2), a wrongful-death action must be brought by the 

personal representative, and plaintiff did not have that status when she filed the complaint. And, 

defendants argued, because plaintiff failed to properly commence the lawsuit within the applicable 

limitations period, the estate’s wrongful-death claim was filed outside the two-year medicalmalpractice limitations period that expired on January 18, 2020, and outside MCL 600.5852’s 

wrongful-death saving period that expired on January 18, 2023. Anticipating plaintiff’s response, 

defendants maintained that the common-law relation-back doctrine did not apply to validate 

plaintiff’s improperly-filed complaint, as plaintiff could not show that she acted in good faith, with 

a reasonable belief that she had authority to act as the estate’s personal representative, when she 

filed the complaint. 

Plaintiff argued that the relation-back doctrine did in fact apply, and operated to relate her 

appointment as personal representative back to the time she filed the complaint, thus rendering her 

wrongful-death action timely. According to plaintiff, she had a good-faith reasonable belief that 

she was the estate’s personal representative when she filed the complaint, and because relation 

back applied, she complied with MCL 600.2922(2)’s requirement that a personal representative 

bring a wrongful-death action, making summary disposition under MCR 2.116(C)(5) improper. 

As to the statute of limitations, plaintiff argued that summary disposition was improper because 

she timely filed the action within MCL 600.5852’s wrongful-death saving period.

The trial court held that the relation-back doctrine did not apply, as there was no dispute 

that plaintiff was aware she did not have letters of authority at the time she filed suit:

I do not want to take her claim away and . . . that’s the purpose of the relation back 

doctrine . . . is to save claims . . . when . . . people in good faith had no idea. But 

she didn’t have the capacity to sue and she didn’t have a . . . good faith belief that 

she was a personal representative [at the time she commenced the action]. In fact, 

she knew . . . that she wasn’t. . . .

The trial court therefore granted defendants’ motion for summary disposition, and dismissed 

plaintiff’s complaint with prejudice, on the basis that the relation-back doctrine did not apply and 

that the claim was barred by the statute of limitations. 

II. ANALYSIS

A. STANDARDS OF REVIEW

“A trial court’s decision on a motion for summary disposition is reviewed de novo.” Tice 

Estate v Tice, 288 Mich App 665, 668; 795 NW2d 604 (2010). Summary disposition is appropriate 

under MCR 2.116(C)(7) if “the claim is barred because of the statute of limitations.” Id. 

(alterations and quotations marks omitted). “With regard to a motion for summary disposition 
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pursuant to MCR 2.116(C)(7), this Court reviews the affidavits, pleadings, and other documentary 

evidence presented by the parties and accept[s] the plaintiff’s well-pleaded allegations, except 

those contradicted by documentary evidence, as true.” Id. (quotation marks and citation omitted; 

alteration in original).

Summary disposition is appropriate under MCR 2.116(C)(5) if “[t]he party asserting the 

claims lacks the legal capacity to sue.” When reviewing a ruling on a motion under that rule, this 

Court “must consider the pleadings, depositions, admissions, affidavits, and other documentary 

evidence submitted by the parties.” Wortelboer v Benzie Co, 212 Mich App 208, 213; 537 NW2d 

603 (1995), citing MCR 2.116(G)(5). However, defendants’ motion concerned whether plaintiff 

was the real party in interest with standing to bring this wrongful-death action on behalf of 

Eversole’s estate, which “ ‘is not the same as the legal-capacity-to-sue defense.’ ” Cannon Twp v 

Rockford Pub Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015), quoting Leite v Dow Chem 

Co, 439 Mich 920, 920; 478 NW2d 892 (1992). “[A] motion for summary disposition asserting 

the real-party-in-interest defense more properly fits ‘within MCR 2.116(C)(8) or MCR 

2.116(C)(10), depending on the pleadings or other circumstances of the particular case.’ ” Cannon 

Twp, 311 Mich App at 411, quoting Leite, 439 Mich at 920. Because the trial court considered 

documents outside the pleadings in deciding whether plaintiff had the legal authority to bring this 

wrongful-death action, we will “treat the trial court’s decision as having been made under MCR 

2.116(C)(10).” Cannon Twp, 311 Mich App at 411, citing Maiden v Rozwood, 461 Mich 109, 

119-120; 597 NW2d 817 (1999).

“A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” 

Cannon Twp, 311 Mich App at 411, citing Maiden, 461 Mich at 120. In reviewing a motion for 

summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, 

pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by 

the parties in the light most favorable to the party opposing the motion. Cannon Twp, 311 Mich 

App at 411; MCR 2.116(G)(5). A trial court may grant a motion for summary disposition under 

MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine 

issue in respect to any material fact, and the moving party is entitled to judgment as a matter of 

law. MCR 2.116(C)(10), (G)(4).

The interpretation and application of a statute presents a question of law subject to review 

de novo. Eggleston v Bio-Med Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 

(2003).

The primary goal of statutory interpretation is to ascertain the legislative intent that 

may reasonably be inferred from the statutory language. The first step in that 

determination is to review the language of the statute itself. Unless statutorily 

defined, every word or phrase of a statute should be accorded its plain and ordinary 

meaning, taking into account the context in which the words are used. [Spectrum 

Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 

117 (2012) (quotation marks and citation omitted).]

“If the language of a statute is clear, no further analysis is necessary or allowed.” Eggleston, 468 

Mich at 32.
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Whether a plaintiff is the real party in interest is a question of law subject to review de 

novo, Cannon Twp, 311 Mich App at 411, as is whether a personal representative’s subsequent 

appointment as personal representative relates back in time to validate an earlier-filed complaint, 

Smith v Henry Ford Hosp, 219 Mich App 555, 557; 557 NW2d 154 (1996).

B. THE MERITS

A proper resolution of plaintiff’s appeal requires consideration of three separate, but 

related, statutes: MCL 600.2922(2), MCL 600.5852, and MCL 700.3701. 

1. MCL 600.2922(2)

Turning first to MCL 600.2922(2), that provision provides that a wrongful-death action 

“shall be brought by, and in the name of, the personal representative of the estate of the deceased.” 

This language is mandatory, precluding anyone but the personal representative from maintaining 

a wrongful-death action. Maiuri v Sinacola Constr Co, 382 Mich 391, 393; 170 NW2d 27 (1969); 

Smith, 219 Mich App at 557-558. Through this language the Legislature clearly expressed its 

desire that “a person be acting in their representative capacity” in order to commence a wrongfuldeath action. Halton v Fawcett, 259 Mich App 699, 704; 675 NW2d 880 (2003). The court rules 

also provide that an action must be brought by the real party in interest, MCR 2.201(B), here, the 

estate’s personal representative, MCL 600.2922(2).1 Therefore, only a personal representative 

may commence a wrongful-death action.2

2. MCL 600.5852

There are also statutory timing requirements concerning when a personal representative 

may bring a wrongful-death action. “Because an underlying claim ‘survives by law’ and must be 

prosecuted under the wrongful-death act, . . . any statutory or common-law limitations on the 

underlying claim apply to a wrongful-death action.” Dale Estate v Robinson, 279 Mich App 676, 

682-683; 760 NW2d 557 (2008) (quotation marks and citation omitted). “Accordingly, a 

wrongful-death medical-malpractice action is governed by the statute of limitations and the accrual 

 

1

“A real party in interest is one who is vested with the right of action on a given claim, although 

the beneficial interest may be in another.” Blue Cross and Blue Shield of Mich v Eaton Rapids 

Community Hosp, 221 Mich App 301, 311; 561 NW2d 488 (1997).

2 This comports with the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., 

according to which, “to acquire the powers . . . of a decedent’s personal representative, a person 

must be appointed by the register or by court order, must qualify, and must be issued letters.” 

MCL 700.3103. “The issuance of letters commences an estate’s administration.” Id. And “[a] 

personal representative’s duties and powers commence on appointment.” MCL 700.3701. Once 

appointed, a personal representative has the authority to “[p]rosecute or defend a claim,” MCL 

700.3715(1)(x), and acquires standing to sue, MCL 700.3703(3) (“a personal representative of a 

decedent domiciled in this state at death has the same standing to sue and be sued . . . as the 

decedent had immediately prior to death”).
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statute applicable to medical-malpractice claims.” Id. at 683. “A plaintiff in a medical-malpractice 

action has two years from the date the cause of action accrued in which to file suit, MCL 

600.5805(6),[3]and a medical-malpractice claim generally ‘accrues at the time of the act or 

omission that is the basis for the claim of medical malpractice . . . ,’ MCL 600.5838a(1).” Dale 

Estate, 279 Mich App at 683.

“However, the Legislature has afforded personal representatives additional time in which 

to pursue legal action on behalf of a decedent’s estate.” Id. MCL 600.5852, known as the 

wrongful-death saving provision, provides as follows:

(1) 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.

(2) If the action that survives by law is an action alleging medical 

malpractice, the 2-year period under subsection (1) runs from the date letters of 

authority are issued to the first personal representative of an estate. Except as 

provided in subsection (3) [concerning the death or legal incapacity of a personal 

representative], the issuance of subsequent letters of authority does not enlarge the 

time within which the action may be commenced.

* * *

(4) Notwithstanding subsections (1) to (3), an action shall not be 

commenced under this section later than 3 years after the period of limitations has 

run.

MCL 600.5852 is not a statute of limitations; rather, it is “a saving provision designed ‘to preserve 

actions that survive death in order that the representative of the estate may have a reasonable time 

to pursue such actions.’ ” Waltz v Wyse, 469 Mich 642, 655; 677 NW2d 813 (2004), quoting 

Lindsey v Harper Hosp, 455 Mich 56, 66; 564 NW2d 861 (1997).4 “Section 5852 clearly provides 

that it is an exception to the limitation period, allowing the commencement of a wrongful death 

action as many as three years after the applicable statute of limitations has expired.” Waltz, 469 

Mich at 651. 5 In other words, under MCL 600.5852, “a personal representative may file a medical 

 

3 On January 18, 2018, when this action accrued, MCL 600.5805(6) provided the malpractice 

limitations period. MCL 600.5805 was amended by 2018 PA 183, effective June 12, 2018, and 

the malpractice limitations period was renumbered as Subsection (8). We refer to Subsection (6) 

in this opinion.

4 Superseded by statute on other grounds as recognized in Braverman v Garden City Hosp, 480 

Mich 1159 n 1; 746 NW2d 612 (2008).

5

“[E]xceptions to statutes of limitation are to be strictly construed.” Mair v Consumers Power 

Co, 419 Mich 74, 80; 348 NW2d 256 (1984).
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malpractice suit on behalf of a deceased person for two years after letters of authority are issued, 

as long as that suit is commenced within three years after the two-year malpractice limitations 

period expired.” Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 

572-573; 703 NW2d 115 (2005) (emphasis added). 

MCL 600.5852 thus provides a maximum of five years from the date the deceased’s 

medical-malpractice claim accrues in which a personal representative may bring a wrongful-death 

action. Waltz, 469 Mich at 649. However, this Court has cautioned that

the three-year ceiling in this provision does not establish an independent period 

during which a personal representative may bring suit. Specifically, it does not 

authorize a personal representative to file suit at any time within three years after 

the period of limitations has run. Rather, the three-year ceiling limits the two-year 

saving period to those cases brought within three years of when the malpractice 

limitations period expired. As a result, while the three-year ceiling can shorten the 

two-year window during which a personal representative may file suit, it cannot 

lengthen it. [Farley, 266 Mich App at 573 n 16.]6

Thus, a wrongful-death action is properly commenced pursuant to MCL 600.5852’s saving period 

if “the complaint was filed within two years of the issuance of the . . . personal representative’s 

letters of authority and within three years after the period of limitations had expired.” Dale Estate, 

279 Mich App at 688-689. That is, MCL 600.5852 plainly provides that the two-year saving period 

“is measured from the date the letters of authority are issued.” Id. at 686 (quotation marks and 

citation omitted).

Plaintiff’s complaint clearly did not conform to these statutory timing and standing 

requirements. Plaintiff brought this medical-malpractice wrongful-death action on January 4, 

2023, even though (1) she was not the personal representative of Eversole’s estate, and (2) the 

applicable medical-malpractice limitations period under MCL 600.5805(6) expired on January 18, 

2020, or two years after the claim accrued on January 18, 2018, the date defendants treated 

Eversole, MCL 600.5838a(1). 

Recognizing this, plaintiff turned to MCL 600.5852’s saving provision, which, again, 

provides that “a personal representative may file a medical malpractice suit on behalf of a deceased 

person for two years after letters of authority are issued, as long as that suit is commenced within 

 

6 Waltz and Farley considered a former version of MCL 600.5852, 1988 PA 221, as amended, 

effective January 1, 1989, which similarly provided as follows:

 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 limitation has run.
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three years after the two-year malpractice limitations period expired.” Farley, 266 Mich App at 

572-573 (emphasis added). See also Eggleston, 468 Mich at 32-33. However, because the probate 

court did not issue plaintiff’s letters of authority7until January 30, 2023, 26 days after she filed 

this wrongful-death action, plaintiff clearly lacked authority under MCL 600.2922(2) to bring the 

action when she filed it.8 Thus, this wrongful-death action was not properly commenced by a 

personal representative, MCL 600.2922(2), within two years after issuance of the letters of 

authority, MCL 600.5852(1). See McMiddleton v Bolling, 267 Mich App 667, 673; 705 NW2d 

720 (2005) (MCL 600.5852 “ ‘clearly allows an action to be brought within two years after letters 

of authority are issued to the personal representative’ . . . not before her appointment.”) (citation 

omitted). See also Jesse Estate v Lakeland Specialty Hosp at Berrien Ctr, 328 Mich App 142, 

147-148; 936 NW2d 705 (2019) (concluding that “a personal representative may not commence 

an action until he has authority to do so and he receives this authority on the date the probate judge 

signs letters of authority,” and the saving provision “begin[s] to run from the date the personal 

representative has authority to commence an action”).

Under these circumstances and controlling law, plaintiff did not properly commence this 

wrongful-death action as a personal representative acting under letters of authority within the 

wrongful-death saving period as required by MCL 600.2922(2) and MCL 600.5852. But the final 

of the three statutory provisions, MCL 700.3701, provides plaintiff relief.

3. MCL 700.3701

Relying on the common-law relation-back doctrine and MCL 700.3701, plaintiff argues 

that her appointment as personal representative related back to the time she filed the complaint, 

thus preserving the estate’s wrongful-death action. In addressing this issue, both parties spill a 

great deal of ink discussing which of the common-law cases apply. These common-law relationback decisions generally hold that the appointment of a personal representative of an estate 

occurring after the statute of limitations for a claim has expired relates back to the timely filing of 

a complaint on the estate’s behalf as long as the personal representative had a good faith belief that 

they had the authority to act, when in fact they did not.9 We conclude, however, that MCL 

700.3701 is dispositive.

 

7 The “letters of authority establishing an estate are ‘issued’ on the date they are signed by the 

register or the probate judge.” Jesse Estate v Lakeland Specialty Hosp at Berrien Ctr, 328 Mich 

App 142, 150; 936 NW2d 705 (2019).

8 The EPIC defines “personal representative” broadly as including, but not limited to, “an executor, 

administrator, successor personal representative, and special personal representative, and any other 

person . . . who performs substantially the same function under the law governing that person’s 

status.” MCL 700.1106(p). Plaintiff did not argue, nor is there any evidence in the record, that 

she had authority to act on behalf of Eversole’s estate before the probate court issued her letters of 

authority.

9 See, e.g., Smith, 219 Mich App at 557; Osner v Boughner, 152 Mich App 744, 747; 394 NW2d 

411 (1986); Saltmarsh v Burnard, 151 Mich App 476, 491; 391 NW2d 382 (1986) (holding “that 
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EPIC includes the following relation-back provision:

A personal representative’s duties and powers commence on appointment. 

A personal representative’s powers relate back in time to give acts by the person 

appointed that are beneficial to the estate occurring before appointment the same 

effect as those occurring after appointment. Subject to sections 3206 to 3207, 

before or after appointment, a person named as a personal representative in a will 

may carry out the decedent’s written instructions relating to the decedent’s body, 

funeral, and burial arrangements. A personal representative may ratify and accept 

an act on behalf of the estate done by another if the act would have been proper for 

a personal representative. [MCL 700.3701 (emphasis added).]

MCL 700.3701 makes clear that a personal representative’s authority to act on behalf of the estate 

arises from her appointment, and relates back to previous acts taken by the appointed person if 

those acts were beneficial to the estate. The statute thus “applies certain legal fictions to a personal 

representative’s premature actions . . . .” Mullins v St Joseph Mercy Hosp, 269 Mich App 586, 

590; 711 NW2d 448 (2006), rev’d on other grounds, 480 Mich 948 (2007). Notably, unlike the 

common-law relation-back doctrine, MCL 700.3701 does not contain any good-faith or 

reasonable-belief requirement.10

We conclude that under MCL 700.3701, the powers granted by the letters of authority 

related back to the date plaintiff filed the complaint on behalf of the estate, i.e., January 4, 2023, 

as filing that timely action was beneficial to the estate. Though the language of the statute provides 

 

an appointment as administrator after the period of limitations has expired relates back to the filing 

of suit if, at the time the suit was filed the plaintiff holds a good faith reasonable belief that he has 

authority to bring suit as administrator, provided that the defendant is not prejudiced by the 

application of the relation-back doctrine in such situations”); Warren v Howlett, 148 Mich App 

417, 422-423; 383 NW2d 636 (1986); Fisher v Volkswagenwerk Aktiengesellschaft, 115 Mich App 

781, 786; 321 NW2d 814 (1982) (appointment as personal representative did not relate back 

because of an absence of good faith at time complaint was filed); Castle v Lockwood-MacDonald 

Hosp, 40 Mich App 597, 605-606; 199 NW2d 252 (1972) (appointment as personal representative 

after statute of limitations expired related back to when the plaintiff filed a timely complaint, given 

her good faith belief she had the authority); Doan v Chesapeake & Ohio Railway Co, 18 Mich 

App 271, 279; 171 NW2d 27 (1969).

10 MCL 700.3701 became effective April 1, 2000, 1998 PA 386, and was not in place when most 

of the common-law relation-back decisions were decided. MCL 700.3701 was previously codified 

at MCL 700.332, 1978 PA 642, effective July 1, 1979, and provided, in relevant part, as follows:

The duties and powers of an independent personal representative commence 

upon appointment. The powers of an independent personal representative relate 

back in time to give acts by the person appointed which are beneficial to the estate 

occurring before the appointment the same effect as those occurring thereafter.

The common law cases did not consider the effect of MCL 700.332.
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the answer to this question, there are several opinions that tangentially touch on the meaning of 

MCL 700.3701. And those opinions support our reading of this rather straightforward statute.

For example, in Tice Estate, Robert Porter, the son of the decedent, Gloria Tice, filed an 

action in his individual capacity to quiet title to disputed property after his mother’s estate was 

closed. Tice Estate, 288 Mich App at 667. The defendants moved for summary disposition under 

MCR 2.116(C)(5), arguing that Porter was not the real party in interest, and should have brought 

the suit as the estate’s personal representative. Id. After the estate was reopened, Porter filed an 

amended complaint in his capacity as the personal representative, after which the defendants 

moved for summary disposition under MCR 2.116(C)(7), arguing that the claim was now barred 

by the statute of limitations. Id. The trial court agreed and granted defendants summary 

disposition, concluding that “because the complaint was not amended to reflect that the estate was 

the plaintiff until after the [applicable limitations period] expired, . . . the action was not timely 

filed.” Id. at 667-669.

This Court reversed. Applying Stamp v Mill Street Inn, 152 Mich App 290; 393 NW2d 

614 (1986), which concerned the amendment of a pleading to substitute a party, this Court 

concluded that the estate “should have been allowed to take advantage of Porter’s filing of the 

original complaint” because Porter, the ultimate beneficiary of the estate, had an interest in the 

matter. Tice Estate, 288 Mich App at 669-670. But this Court also referenced MCL 700.3701:

Peculiar to this case, there is also statutory support for such a holding [in 

MCL 700.3701]. 

* * *

Under this statute, it appears that Porter’s act of commencing the suit should 

have been given the same effect as if, in April 2008, he had been the personal 

representative of the decedent. If Porter had been the personal representative at the 

time that he filed suit, then the only issue would have been that the case was not 

properly captioned. This Court has held that the form of the caption is generally 

not of particular importance.

From the foregoing, we conclude that the amended complaint related back 

in time to the filing of the original complaint. The relation-back doctrine does not 

extend to the addition of new parties, but when a plaintiff has brought an action in 

the wrong capacity, a new plaintiff is allowed to take advantage of the original 

action if the original plaintiff had an interest in the subject matter of the controversy. 

Under the Stamp rule, the estate should have been allowed to take advantage of the 

original filing because Porter, as Gloria’s heir, had an interest in the subject matter 

of the controversy. Permitting relation back is also supported by MCL 700.3701, 

under which Porter’s act of commencing the suit should have been given the same 

effect as if, at the time, he was the decedent’s personal representative. Notably, 

defendants had notice within the statutory period that they would have to defend 

against claims of a fraudulent transfer and an insufficient deed. Thus, ruling in the 

estate’s favor will not undermine the purpose of the statute of limitations. [Tice 

Estate, 288 Mich App 670-671 (citations omitted).]
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Tice Estate generally supports the relation back under MCL 700.3701 of a personal 

representative’s appointment to validate a previously-filed complaint. However, Tice Estate did 

not involve a wrongful-death action, for which the requirements of MCL 600.5852 (establishing 

the timing requirements of a wrongful-death action) and MCL 600.2922(2) (the personal 

representative must file a wrongful-death action) are implicated. 

Waltz also briefly mentions MCL 700.3701. There, the plaintiff filed a notice of intent in 

January 1999, well outside the applicable two-year medical-malpractice wrongful-death 

limitations period that began to run, at the latest, on April 18, 1994. On May 27, 1999, the plaintiff 

was appointed personal representative, and on June 23, 1999, the plaintiff commenced a wrongfuldeath action. Waltz, 469 Mich at 645. The defendants moved for summary disposition, arguing 

that the plaintiff’s complaint was not timely filed because it was filed after the maximum five-year 

period under MCL 600.5852 lapsed on April 18, 1999. Id. at 645-646. The plaintiff countered 

that her complaint was timely filed within the two-year wrongful-death saving period, because the 

notice-tolling provision, MCL 600.5856, extended the saving period an additional six months. Id. 

at 648. Although the Court held that a notice of intent filed outside of the statutory limitations 

period does not toll the wrongful-death saving period, barring the plaintiff’s complaint, the Court 

in dictum discussed MCL 700.3701:

Although in light of our resolution of this matter it is not necessary to address at 

any length the significance of the fact that plaintiff had not yet been appointed 

personal representative at the time that she filed her notices of intent, we note that 

former MCL 700.332 (repealed and recodified in part at MCL 700.3701, 1998 PA 

386, effective April 1, 2000) provided that “[t]he powers of an independent personal 

representative relate back in time to give acts by the person appointed which are 

beneficial to the estate occurring before the appointment the same effect as those 

occurring thereafter.” [Waltz, 469 Mich at 647 n 8 (alteration in original).]

The Waltz Court thus implied that MCL 700.3701’s predecessor would have applied to relate the 

plaintiff’s appointment back in time to give the notice of intent effect. 

In McMiddleton, cited by both parties, the original personal representative did not bring 

the medical-malpractice wrongful-death action within the statutory two-year limitations period, or 

within two years after the issuance of her letters of authority, and thus, the action was untimely. 

On the last day of the maximum period in which to file an action under MCL 600.5852, the plaintiff 

was appointed successor personal representative, but did not file a complaint. McMiddleton, 267 

Mich App at 673. The plaintiff contended that she did not need to file another complaint because 

the original personal representative had already commenced an action within MCL 600.5852’s 

five-year maximum period. Id. This Court disagreed, concluding that, under MCL 600.5852, “a 

successor personal representative cannot rely on the untimely filed complaint that was filed before 

she was appointed.” Id., citing Eggleston, 468 Mich at 33. Pertinent here, this Court rejected the 

plaintiff’s argument that her appointment related back in time under MCL 700.3701 to validate 

the original untimely filed complaint:

Plaintiff also cites MCL 700.3701 asserting that the successor personal 

representative’s powers “relate back in time to give acts by the person appointed 

that are beneficial to the estate occurring before appointment the same effect as 
-11-

those occurring after appointment.” Plaintiff also asserts that, the same statute 

states, “ ‘A personal representative may ratify and accept an act on behalf of the 

estate done by another if the act would have been proper for a personal 

representative.’ ” The problem with this argument is that the original personal 

representative filed the complaint more than two years after she had been 

appointed; in other words, she filed the complaint untimely. This act was not 

beneficial to the estate. Further, even if the successor personal representative 

ratifies this act she is only ratifying the filing of an untimely complaint. Therefore, 

we conclude that MCL 700.3701 does not support the conclusion that the 

appointment of a successor personal representative can render timely an untimely 

complaint filed by the original personal representative. [McMiddleton, 267 Mich 

App at 673-674.]

Under the McMiddleton Court’s reasoning, a personal representative’s appointment may arguably 

relate back under MCL 700.3701 to give effect to a wrongful-death action that was filed within 

MCL 600.5852’s two-year saving period, as the filing of a timely complaint would be beneficial 

to the estate. See also Chernoff v Sinai Hosp of Greater Detroit, 471 Mich 910, 910; 688 NW2d 

284 (2004) (MARKMAN, J., concurring). 

These decisions, as well as the plain language of the statute, support application of MCL 

700.3701 to this wrongful-death action. As noted, plaintiff timely filed the complaint, but did not 

have the authority to do so in the absence of her appointment as personal representative of the 

estate. But once she received that appointment, it related back to the timely filing of the complaint 

so long as that prior act, the timely filing of the complaint, benefitted the estate. Because it did

benefit the estate, the court should have allowed plaintiff’s appointment as personal representative 

to relate back. This conclusion is consistent with the other involved statutes, namely MCL 

600.5852 and MCL 600.2922(2).

“Under the rule of construction of statutes in pari materia, it is appropriate to harmonize 

statutory provisions that serve a common purpose when attempting to discern the intent of the 

Legislature.” Lindsey, 455 Mich at 65. And, as recognized in a different context, MCL 600.5852’s 

“saving provision . . . and the Probate Code [now EPIC11] are intended to work together to preserve 

legal actions that survive death and to define the running of the statute of limitations where a 

person dies before or within thirty days of the running of the period of limitation.” Id.

Contrary to defendants’ argument, relating back a personal representative’s powers under 

MCL 700.3701 to give effect to a prematurely-filed wrongful-death action does not defeat the clear 

legislative intent expressed in MCL 600.2922(2), authorizing only the personal representative to 

bring a wrongful-death action. Rather, relation back of a personal representative’s appointment 

under MCL 700.3701 preserves an estate’s otherwise valid wrongful-death claim by providing a 

 

11 Effective April 1, 2000, the Revised Probate Code was repealed and replaced by the EPIC. MCL 

700.8102(c).
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means to cure the initial lack of standing.12 Thus, MCL 700.3701’s relation-back provision can 

be read harmoniously with MCL 600.2922(2) to advance the common purpose of preserving an 

estate’s valid and timely wrongful-death claim. See Smith, 219 Mich App at 558.

Further, well before the Legislature enacted MCL 700.3701, this Court applied the relationback doctrine to preserve a wrongful-death action where the plaintiff reasonably believed, in good

faith, that he or she had the authority to file the complaint, even though MCL 600.2922(2) required 

that the action be brought by the personal representative. See note 9 of this opinion. It is presumed 

that the Legislature knew of the existence of this common law when it enacted MCL 700.3701,

Wold Architects and Engineers v Strat, 474 Mich 223, 234; 713 NW2d 750 (2006), and if the 

Legislature intended that a personal representative’s powers would not relate back in time under 

MCL 700.3701 to give effect to a wrongful-death action, it could have expressly limited MCL 

700.3701’s reach, but it did not.

Defendants also argue that the saving period within MCL 600.5852 would be rendered 

nugatory if the provisions of MCL 700.3701 permitted plaintiff’s complaint to be timely. 

According to defendants, plaintiff did not timely invoke the two-year saving period under MCL 

600.5852(1), even if she is deemed to have properly filed the complaint on January 4, 2023, by 

operation of MCL 700.3701. This is so, defendants argue, because the issuance of the letters of 

authority is the event that triggers MCL 600.5852’s two-year saving period, not the filing of the 

complaint. And plaintiff’s letters of authority were not issued until January 30, 2023, after the 

five-year grace period under MCL 600.5852 expired on January 18, 2023. 

Acceptance of defendants’ argument requires a strained reading of MCL 700.3701, and 

ignores the legal fiction that the statute imposes. It is true that under MCL 700.3701, it is the 

letters of authority that grant a person the power to act as a personal representative, but it is equally 

true that if that power relates back to an earlier act, the law treats it as if the person was the personal 

representative when previously acting. Thus, the requirement within MCL 600.5852, that the twoyear period commences once letters of authority are granted, will have been complied with when 

acting under the legal fiction provided by the relation-back provision of MCL 700.3701.13 For the 

same reason, so too will have MCL 600.2922(2).

 

12 “[T]he cause of action granted to the personal representative of a decedent’s estate by the 

wrongful death act is a derivative one . . . .” Haque v Oakland Probate Judge, 237 Mich App 295, 

309; 602 NW2d 622 (1999). Thus, “the legal right [a personal representative] represents belongs 

to the estate, and her claim must be brought on behalf of the estate.” Washington v Sinai Hosp of 

Greater Detroit, 478 Mich 412, 420; 733 NW2d 755 (2007).

13 Of course, the other requirement of MCL 600.5852, that the complaint be filed within that 

timeframe, was indisputably complied with by plaintiff. And the fact that the complaint was filed 

within that timeframe will usually prevent any prejudice to a defendant. See Tice, 288 Mich App 

at 671.
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The trial court’s order granting defendants’ motion for summary disposition is reversed, 

and the matter is remanded for further proceedings. Plaintiff may tax costs, having prevailed in 

full. MCR 7.219(A).

/s/ Christopher M. Murray

/s/ Michael J. Riordan

/s/ David H. Sawyer