Opinion
Docket No. 48411.
Decided May 6, 1981.
Smith Brooker, P.C. (by Albert C. Hicks), for United States Fidelity Guaranty Company and Peoples National Bank Trust Company of Bay City.
Patterson, Gruber Kennedy, P.C., for John W. Hampton and Marilyn H. Hampton.
Before: R.B. BURNS, P.J., and BASHARA and M.F. CAVANAGH, JJ.
The Bay County Probate Court entered an order reopening the estate of Edwin C. Miller, deceased, who had been a physician during his lifetime, and appointing a personal representative several years after the probate of his estate was completed. The order was entered pursuant to the petition of a former patient who allegedly discovered surgical malpractice on the part of the physician several years after the latter's death. The order was entered for the purpose of providing a defendant against whom the former patient could file a medical malpractice action in circuit court to attempt to recover from the malpractice insurer. Both the personal representative appointed in the probate court order and the malpractice insurer have taken this appeal.
The potential recovery of money damages by the appellees here in any circuit court malpractice action is limited to sources other than assets of the probate estate previously distributed. Williams v Grossman, 409 Mich. 67, 78; 293 N.W.2d 315 (1980).
The claim of appeal was filed pursuant to MCL 600.861; MSA 27A.861, which provides inter alia that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust". Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain an appeal from this probate court order, this Court ordered the parties to file separate briefs on this jurisdictional question. Since the order in question clearly was entered in a decedent's estate, the issue is whether or not the order reopening the estate and appointing a successor personal representative was a "final" order and therefore appealable to this Court rather than the circuit court.
This section is part of the new Chapter 8 added to the Revised Judicature Act by 1978 PA 543, which took effect July 1, 1979.
As we have stated before, since there is no statutory or rule definition of the term "final" as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final" and which are not, for purposes of determining the appellate jurisdiction of this Court, has to be made on a case-by-case basis. In re Swanson Estate, 98 Mich. App. 347; 296 N.W.2d 256 (1980). The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter. Equitable Trust Co v Bankers Trust Co, 268 Mich. 394, 397-398; 256 N.W. 460 (1934), In re Swanson Estate, supra. Since the order of the Bay County Probate Court reopening the decedent's estate and appointing a successor personal representative is not dispositive of any of the rights of the parties, we conclude that this order is not a final order appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861. This appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the Circuit Court for the County of Bay pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich. App. 341; 296 N.W.2d 254 (1980).
The appeal is dismissed. It is ordered that the time for filing a proper motion for leave to appeal in the circuit court shall commence with the release date of this opinion.