Estate of Linda Horn v. Michael J Swofford Do

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
ESTATE OF LINDA HORN, by JOELYNN T. FOR PUBLICATION
STOKES, Personal Representative, October 22, 2020
Plaintiff-Appellant,
v No. 349522
Oakland Circuit Court
MICHAEL J. SWOFFORD, D.O., and LC No. 2018-164148-NH
SOUTHFIELD RADIOLOGY ASSOCIATES,
PLLC,
Defendants-Appellees.
Before: BOONSTRA, P.J., and MARKEY and HOOD, JJ.
BOONSTRA, P.J. (concurring).
I concur in the majority opinion. I write separately simply to encourage our Supreme
Court, in this or another appropriate case, to clarify the law in this area. I note that while this case
turns largely on the Supreme Court’s decision in Woodard v Custer, 476 Mich. 545, 557; 719
NW2d 842 (2006), by which we are bound, that decision featured no less than four opinions,
including two concurring opinions (one of which was authored by the author of the four-Justice
majority opinion) and a three-Justice dissent that maintained that it actually was the majority
opinion (by virtue of the second concurrence). Moreover, this Court’s unpublished decision in
Higgins v Traill, unpublished per curiam opinion of the Court of Appeals, issued July 30, 2019
(Docket No. 343664), featured a separate concurring opinion by Judge GLEICHER in which she
maintained that Woodard’s analysis was faulty in certain respects and should be reconsidered.
Although the Supreme Court subsequently denied leave to appeal in Higgins, it did so on an
evenly-split 3-3 vote, with one Justice not participating. And there remains disagreement—which
the Supreme Court could put to rest, one way or another—about whether its order in Estate of Jilek
v Stockson, 490 Mich. 961 (2011), implicitly overruled Reeves v Carson City Hosp (On Remand),
274 Mich. App. 622; 736 NW2d 284 (2007).
For these reasons, I concur in the majority opinion, but encourage our Supreme Court to
provide much-needed clarity in this complex area of law.
/s/ Mark T. Boonstra
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