Arnold v. Department of Transportation
597 N.W.2d 261
Mich. Ct. App.
1999
Check Treatment
Fitzgerald, P.J.

Plаintiff appeals as of right the order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(4) and the order denying his motion to amеnd his complaint in this negligence action against the Department of Transportation. We reverse and remand.

Plaintiff filed this action against the Department of Transportation in the Court of Claims under the defective highway exception to governmental immunity.1 The Court of Claims dismissed the action on the ground that the court lacked subject-matter jurisdiction because plaintiff fаiled to file a verified complaint as required by MCL 600.6434(2); MSA 27A.6434(2). The court also determined that because it lacked subject-matter jurisdiсtion, it did not have jurisdiction to grant plaintiffs motion to amend his complaint that was brought pursuant to MCR 2.118(A)(2).

Plaintiff argues that the Court of Claims erred in holding that it did not have jurisdiction to permit plaintiff to amend his complaint. The pivotal issue presented is whether a verifiеd complaint is a prerequisite to the Court of Claims’ exercise of jurisdiction pursuant to § 6434 of the Court of Claims Act, MCL 600.6434; MSA 27A.6434. That section provides in part:

(1) Except as provided in this section, the pleadings shall conform to the rules for pleadings in the circuit сourts.
(2) The complaint shall be verified. The pleadings ‍‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌‌​‌‌​​‌‌‌​‍of the state need not be verified.

*343An analogous provision, MCL 600.6431(1); MSA 27A.6431(1), details thе requirements, including verification, that govern the notice of intention to file a claim under the act. It provides:

No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files . . . either a written claim оr a written notice of intention to file a claim against the state . . . stating the time when and the place where such claim аrose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustainеd, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.

Neithеr § 6431 nor § 6434 contains the word “jurisdiction,” and a straightforward reading of these provisions does not indicate an intent on the part оf the Legislature to make either section’s requirements jurisdictional. Plainly expressed statutory language is presumed to be an expression of legislative intent, People v Venticinque, 459 Mich 90, 99; 586 NW2d 732 (1998), and when the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Hence, we are satisfied that the failure to verify a complaint is not of jurisdictiоnal import.

Our decision is consistent with the many cases in which this Court has found ‍‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌‌​‌‌​​‌‌‌​‍similar notice and verification requirements to be nonjurisdictional. In Hussey v Muskegon Heights, 36 Mich App 264; 193 NW2d 421 (1971), the Court addressed whether the notice provisions of MCL 691.1404; MSA 3.996(104) were jurisdictional. The Court held that

*344as the law now stands, deficiencies in a notice of injury and defect are not of jurisdictional import, and an injured person may not be denied his day in court on that account absent a showing by the governmental agency that it has been thereby prejudiced. [Hussey, supra at 270.]

In In re Fair Estate, 55 Mich App 35; 222 NW2d 22 (1974), the Court addressed whether a technical violation of the requirements of MCL 600.6431(1); MSA 27A.6431(1) would support a trial court’s grant of an accelerated judgment for the defendant. Noting an earlier observation by this Court2 that the requirement of verifying a complaint “ ‘ “is a useless formality,” ’ ” Fair Estate, supra at 41 (citation omitted), this Court commented regarding the unfairness of a rule that would “deprive plaintiff ‍‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌‌​‌‌​​‌‌‌​‍of his day in court for a mere noncompliance with a much-attacked technical aspect of the statute.” Id. at 40. The Court held that

[i]n light of defendant’s failure to demonstrate in what manner it was рrejudiced by the unverified complaint, we hold . . . that plaintiff substantially complied with the notice requirements of MCLA 600.6431(1); MSA 27A.6431(1) and that the trial сourt erred in granting defendant’s motion for accelerated judgment. [Id. at 41-42.]

See also Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972) (notice requirement of the Motor Vehicle Accidеnt Claims Act, MCL 257.1118; MSA 9.2818, is not jurisdictional).3

*345Defendant relies on Gilliland Constr Co v State Hwy Dep’t, 4 Mich App 618; 145 NW2d 384 (1966), which involved a contract dispute between the plaintiff highway contractor and the State Highway Dеpartment. The state responded to the complaint with a motion to dismiss on the basis of a lack of subject-matter jurisdiction because

the complaint did not comply with the statute (CLS 1961, § 600.6431 . . .) in that it: (1) failed to state the time when the claim arose, and (2) failed to state in detail the items of damage claimed to have been sustained. [Gilliland, supra at 620.]

The plaintiff filed an amended complaint, which the defendant again challenged on the basis of the “plaintiff’s failure to state the items of damage in detail as required by the cited statute.” Id. The plaintiff filed a second amended complaint, which the defendant again moved to dismiss ‍‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌‌​‌‌​​‌‌‌​‍on the ground that the second amended complaint was not verified as required by statute.4 The Court of Claims denied the plaintiff’s motion for leave to amend its second amended complaint so as to verify it. In reversing the decision of the Court of Claims, this Court held that the first amеnded verified complaint was sufficiently detailed to comport with the requirements of § 600.6431:

A careful examination of the reсord and the pleadings found therein, convinces us that a valid claim meeting the *346requirements of the statute, which requirements are jurisdictional, was filed and the complaint should not have been dismissed. [Gilliland, supra at 621 (emphasis added).]

This emphasized statement, on which defendant relies, was not essential to the determination of the Gilliland case and we decline to follow it.5

In sum, we conclude that the verification requirements of subsections 6431(1) and 6434(2) аre nonjurisdictional. Consequently, the Court of Claims erred in concluding that the Court of Claims did not have subject-matter jurisdiction becаuse of plaintiff’s failure to verify his complaint and in denying plaintiff’s motion to amend his complaint without consideration of the merits of the motion. Accordingly, we reverse the orders and remand this matter to the Court of Claims for reconsideration of plaintiff’s motion.

Reversed and remanded. This Court does not retain jurisdiction.

Notes

MCL 691.1402; MSA 3.996(102).

Davidson v Michigan, 42 Mich App 80, 85; 201 NW2d 296 (1972).

Statutes involving notice and verification requirements generаlly have been construed to require the defendant to show prejudice before ‍‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌‌​‌‌​​‌‌‌​‍a plaintiff’s failure to comply with the stаtutory requirements may be used as a basis for dismissing the case. See, e.g., Stoltman v Stoltman, 170 Mich App 653, 657; 429 NW2d 220 (1988) (imperfect verification of a pleading *345is not a jurisdictional defect and may be cured by amendmеnt); Hanger v State Hwy Dep’t, 64 Mich App 572, 583-584; 236 NW2d 148 (1975) (the defendant would need to show prejudice before the plaintiffs’ claim would be dismissed for failure to give notice under MCL 600.6431(3); MSA 27A.6431(3).

The defendant cited CLS 1961, § 600.6434, the predecessor of MCL 600.6434(2); MSA 27A.6434(2).

Further, Gilliland was decided before November 1, 1990, and is therefore not binding precedent. MCR 7.215(H)(1).