Lead Opinion
Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right a circuit court order granting summary disposition for defendants, Memorial Hospital, doing business in Owosso as Memorial Healthcare Center; two of its practitioners, doctors Russell H. Tobe and James H. Deering; and the business entities under which they practice. We reverse and remand for further proceedings.
Plaintiffs commenced this action in November 2001, stating that Sue Apsey was admitted to Memorial Healthcare Center for an “exploratory laparotomy,” which resulted in the removal of a large ovarian cyst. Various complicatiоns followed. Plaintiffs allege that misdiagnoses and errant reporting attendant to those complications caused Sue Apsey to become “septic,” requiring several follow-up surgeries.
Plaintiffs’ affidavit of merit was prepared in Pennsylvania, using a notary public of that state. A normal notarial seal appears on the document, and it is not disputed that plaintiffs initially provided no special certification to authenticate the credentials of the out-of-state notary public. Instead, plaintiffs provided that certification after the period of limitations had run on their cause of action. Defendants moved in the trial court for summary disposition with regard to plaintiffs’ medical malpractice claims, citing MCL 600.2912d and 600.2102. In granting the motions, the court reasoned that the failure to provide the special certification was fatal to the notarization and, thus, that the affidavit itself was a nullity, rendering plaintiffs’ complaint invalid.
At issue in this appeal is whether MCL 565.262, the general statute concerning notarial acts, governs affi
This Court reviews de novo a trial court’s decision on a motion for summary disposition as a question of law. Dressel v Ameribank,
MCL 600.2912d(1) provides, in part:
[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by а health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness. ... The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiffs attorney concerning the allegations contained in the notice ....
Subsections 1(a) through (d) set forth the particulars to which the expert must attest. An affidavit for these purposes must be “confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Holmes v Michigan Capital Med Ctr,
In this case, neither the need for an affidavit of merit nor the requirement that one be notarized is in dispute. The controversy, instead, concerns what constitutes a valid out-of-state notarization.
In 1924, our Supreme Court reiterated the legislative requirement that, if an affidavit submitted to a court is authenticated by an out-of-state notary public, in order for the court to consider the affidavit, the signature of the sister-state notary рublic must be certified by the clerk of the court of record in the county in which the affidavit was executed. In re Alston’s Estate,
may be taken before ... any notary public ... authorized by the laws of such state to administer oaths therein. The signature of such notary public .. . shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.
This language closely mirrors that which was construed by our Supreme Court in In re Alston’s Estate, supra at 481; see also Wallace v Wallace,
Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), MCL 565.261 et seq. “Notarial acts” are defined as “acts that
If the notarial act is performed by any of the persons described in subdivisions (a) to (d) [sic] of section 2, other than a person authorized to perform notarial acts by the laws or regulations of a foreign country, the signature, rank or title and serial number, if any, of the person are sufficient proof of the authority of a holder of that rank or title to perform the act. Further proof of his authority is not required.
MCL 565.263(4) states that “[t]he signature and title of the person performing the act are prima facie evidence that he is a person with the designated title and that the signature is genuine.”
If the present inquiry were to be decided on the basis of the URAA, the notarization of the affidavit in question would indisputably be valid. Plaintiffs’ affidavit of merit bears the signature and notary seal of a Pennsylvania notary public. That status in another state carries over to this state, and the signature and the title are prima facie evidence of authenticity, MCL 565.263(4). But the signature and the notary seal do not satisfy the requirements set forth in MCL 600.2102(4). The question, then, is whether MCL 565.262 affects MCL 600.2102, and, if so, in what manner.
When this issue was initially raised before the trial court, only the applicability of MCL 600.2102 was argued. The court recognized the inflеxibility of that
Defendant Deering argues that the specific mention of affidavits in MCL 600.2102 indicates greater legislative specificity than the general mention of notarial acts in MCL 565.262. However, the general language of the latter is obviously a consequence of the statute covering acts performed in some cases by persons other than notaries public and coverage of notarial acts performed on documents other than affidavits. The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Haworth, supra at 227. Notaries public, either in-state or out-of-state, are expressly mentioned in MCL 565.262(a), along with the function of “attesting documents.” Affidavits, and the role of the notary public in executing them, are obviously envisioned.
Both plaintiffs and defendants raise issues regarding the placement of the statutes. “[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in their natural and ordinary sense.” Gross v Gen Motors Corp,
The URAA appears among statutes governing conveyances of real property. The emphasis, then, is not on documents submitted to Michigan courts, but on documents that have potentially great legal significance in
MCL 600.2102 appears within the Revised Judicature Act, MCL 600.101 et seq., and retains its predecessor’s language concerning affidavits “received in judicial proceedings,” which our Supreme Court construed as strictly requiring that special certification accompany notarizations by out-of-state notaries public. In re Alston’s Estate, supra at 481-482. Plaintiffs point out that this statute is sandwiched between provisions governing evidence and argue that it thus applies only when the affidavit in question is to be read into evidence. However, the statute itself sets forth what is required for a sister-state affidavit “to be read,” not “to be read specifically into evidence.” The Legislature is presumed to have intended the meaning it plainly expressed, Pohutski v City of Allen Park,
Thus, neither the provisions of the URAA, in particular MCL 565.262 and MCL 565.263, nor MCL 600.2102 are rendered inapplicable on the basis of structural placement. These statutes relate to authentication and share the common purpose of requiring verification for the authenticity of out-of-state notarial acts. As such, the statutes are in pari materia. Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if each contains no reference to the other and they were enacted on different dates. State Treasurer v Schuster,
The two statutes can be harmonized. The URAA provides in pertinent part, “Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state.” MCL 565.268. The Legislature is charged with knowledge of existing laws on the same subject and is presumed to have considered the effect of new laws on all existing laws. Walen v Dep’t of Corrections,
For these reasons, we find that the more specific requirements of MCL 600.2102 of the Revised Judicature Act control over the general requirements of MCL 565.262 of the URAA. See Antrim, supra at 484, citing Gebhardt, supra at 542-543. In other words, MCL 565.262 governs notarial acts, including the execution of affidavits, in general, to which MCL 600.2102 adds a special certification requirement when the affidavit is to be read, meaning officially received and considered, by the judiciary.
Because of the injustice and inequity that could result from our determination on this issue of first impression, we will address whether the ramifications (a dismissal based on the claims being time barred) of our interpretation should be applied retroactively or prospectively. “ ‘ “The general rule is that judicial decisions are to be given complete retroactive effect. . . . ” ’ ” Ousley v McLaren,
In essence, the question before this Court is an issue of first impression whose resolution, because of the URAA, was not clearly foreshadowed. Our decision is based on a law, MCL 600.2102, requiring a special certification for out-of-state notarial acts, which law has been overlooked by practitioners in medical malpractice cases or, more likely, practitioners have been under the impression that the URAA, enacted subsequently to MCL 600.2102, was the applicable statute and that special certification was not required. Plaintiffs’ counsel raised a concern at oral argument with regard to the significant effect this holding could have on medical malpractice cases in Michigan because a majority of affidavits of merit for medical malpractice cases come from out of state and practitioners have relied on the
The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan .... Plaintiffs failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights....
Plaintiff has stated two claims that require expert testimony and therefore sound in medical malpractice. Although these claims were filed after the applicable period of limitations had run and would ordinarily be time-barred, the procedural features of this case dictate that plaintiff should be permitted to proceed with her medical malpractice claims....
Similarly, plaintiffs in the present case, apparently like a significant number of the bar of Michigan, were under the impressiоn that meeting the requirements of the URAA was sufficient to verify an out-of-state notarial act on an affidavit of merit filed with the court to support a medical malpractice claim.
For the above stated reasons, reversing the trial court’s order granting defendants’ motions for summary disposition and allowing plaintiffs’ claims to proceed best serve justice and equity. Plaintiffs, in this case, have already presented the proper certification. With regard to all medical malpractice cases pending in which plaintiffs are not in compliance with MCL 600.2102(4), on the basis of justice and equity, plaintiffs can come into compliance by filing the proper certification. Furthermore, justice and equity also dictаte a strict application from the date of this opinion. From the date of the issuance of this opinion, any affidavit of merit acknowledged by an out-of-state notary filed without the proper certification will not toll the period of limitations because the legal community is now on
Reversed and remanded for proceedings consistent with this opinion. We do nоt retain jurisdiction.
Notes
After the enactment of the URAA, this Court, in Sellers v Goldapper, unpublished opinion per curiam, issued November 4, 1997 (Docket No. 196914), found a defendant’s affidavit showing a meritorious defense to he a nullity under MCL 600.2102(4) for lack of certification of the notary’s signature when the defendant was a New York resident. We view this unpublished opinion by a panel of this Court, requiring an affidavit from an New York resident to meet the requirements of MCL 600.2102(4), as persuasive, because of the limited case law, but note that unpublished opinions are not binding under the rules of stare decisis. MCR 7.215(C)(1); see also Dyball v Lennox,
We note that the dissent purports to harmonize MCL 600.2102 and the various provisions of the URAA by rendering significant рarts of MCL 600.2102(d) nugatory. In construing a statute, a court should presume that every word has some meaning and should avoid any construction that would render any part of a statute surplusage or nugatory Jenkins v Patel,
Our position is further supported by Lee v Putz, unpublished memorandum opinion and order of the United States District Court, Western District of Michigan, issued December 10, 2003 (Docket No. 1:03-CV-267), pp 4-5, in which the district court, applying MCL 600.2102, found in connection with an affidavit of merit notarized hy an out-of-state notary that, “[b]ecause an affidavit without the appropriate certification is null and void under Michigan law, Plaintiff has failed to assert a claim that is cognizable in Michigan state courts.” The court further found that the plaintiff could not cure the defect because of the statute of limitations. We note that defendant Deering appended this federal court holding to his brief; however, for reasons not explained, the names of the parties, and the file number, have been redacted. But an unredacted copy is attached to defendant Memorial Hospital’s brief. We further note that, although not binding, this case stands as a recent example in which MCL 600.2102 was held to impose a certification requirement on out-of-state notaries public involved with affidavits of merit in medical malpractice cases. See Sharp v City of Lansing,
Although full retroactivity is favored when a decision “does not announce a new principle of law,” Michigan Ed Employees Mut Ins Co v Morris,
The brief amicus curiae of the State Bar of Michigan asserts, “The vast majority of the members of the State Bar of Michigan who have supplied out-of-state affidavits have supplied uncertified affidavits in the belief that the plain language of the URAA would be given effect.” The brief amicus curiae on behalf of the State Bar of Michigan Negligence Section and Elder Law Section asserts, “Attorneys in this State .... have read this URAA as obviating the need to obtain formal certification of that authority... as required by MCL 600.2102, in оrder to present a valid affidavit of merit to the court in compliance with MCL 600.2912d.”
See n 5 of this opinion.
The wisdom of a statute is for the determination of the Legislature, and the law must be enforced as written. Smith v Cliffs on the Bay Condo Ass’n,
Dissenting Opinion
(dissenting). I respectfully dissent. After further review and consideration, I believe this case was wrongly decided and conclude that the affidavit of merit filed in this matter met the requirements of MCL 600.2912d(1).
MCL 600.2912d(1) requires the filing of an affidavit of merit with the complaint. To be valid, an affidavit must be confirmed by the oath or affirmation of the party making it, and it must be taken before a person having authority to administer the oath or affirmation. Holmes v Michigan Capital Med Ctr,
Here, the affidavit of merit filed in this matter was confirmed by oath or affirmation in Pennsylvania before an authorized notary public. Neither the sufficiency of the jurat nor the authority of the notary public was contested. Instead, defendants argued that, because the certification requirement of MCL 600.2102 was not complied with, the affidavit of merit was a nullity. In our original opinion, we agreed. After further review and consideration, I disagree and would correct this erroneous conclusion. Because my colleagues continue to hold that MCL 600.2102 applies to nullify affidavits that are notarized in other jurisdictions and not further certified as prescribed by MCL 600.2102, I dissent.
As was argued by plaintiffs in their motion for reconsideration, and by amici curiae in their briefs, MCL 600.2102 and thе URAA, particularly MCL 565.263, are harmonious and should be read in pari materia. Both statutes relate to authentication and have the same general purpose — to verify the authenticity of notarial acts, including those involving affidavits. See State Treasurer v Schuster,
The statute in dispute, MCL 600.2102, provides a method of authenticating notarial acts, i.e., of proving that a notary public actually notarized the document. MCL 600.2102(4) states that “[t]he signature of such notary public . . . and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public ... shall be certified by the clerk of any court of recоrd in the county where such affidavit shall be taken, under the seal of
The URAA, however, explicitly states that it is “an additional method of proving notarial acts.” MCL 565.268. And, MCL 565.263(4) provides that the signature and title of the notary public are prima facie evidence that he or she is a notary public and that his or her signature is genuine. That is, there is another method of proving that a notary public actually notarized the document that does not require a clerk of а court to perform the authenticating function. The majority’s reliance on and interpretation of the sentence, “Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state,” found in MCL 565.268 is misguided. The key phrase in that sentence is “the recognition accorded to notarial acts .. . .” Reasonably interpreted, the sentence does not eviscerate the effect of the URAA or buttress the applicability of MCL 600.2102. That is, rather than decreasing or limiting the recognition accorded notarial acts, the URAA broadens the recognition accorded to notarial acts. The majority’s reasoning also creates a double standard with respect to affidavits that will be read in judicial proceedings versus those that will not. This seems to create logistical problems in that affidavits typically have the potential of ending up in a judicial proceeding, sometimes years after the notarial act was performed, although litigation was not anticipated at the time the affidavit was notarized.
Accordingly, on reconsideration I conclude that the affidavit of merit filed in this matter was sufficient and effective on its face. Therefore, I would reverse the trial court’s dismissal of this action on the ground that the affidavit of merit was a nullity and remand the matter to the trial court for continued proceedings.
I believe the majority’s continued reliance on In re Alston’s Estate,