SAFFIAN v SIMMONS
Docket No. 250645
Court of Appeals of Michigan
July 7, 2005
267 MICH APP 297
Submitted January 4, 2005, at Lansing. Decided July 7, 2005, at 9:05 a.m. Leave to appeal sought.
The Court of Appeals held:
1. Any deficiency in the plaintiff‘s affidavit of merit attached to the malpractice complaint did not relieve the defendant of the duty to file a timely answer. The requirement that a defendant answer a complaint tests the adequacy of the complaint and the affidavit. If procedural devices permit the complaint to go unanswered to no disadvantage, the test fails its purpose. An affidavit was filed with the complaint and was presumptively proper when the default entered. After the default entered, it was too late for the defendant to argue that the case had not commenced because of a deficient affidavit.
2. The circuit court correctly reinstated the default because it was not persuaded by the defendant‘s assertion that he had a reasonable excuse for failing to timely answer the summons and complaint. His employee allegedly faxed the summons and com-
Affirmed.
ZAHRA, J., concurring in part and dissenting in part, stated that he agreed that the defendant was required to answer or otherwise timely respond to the complaint, notwithstanding the defective affidavit of merit. The defendant did not have the authority to unilaterally determine that the proffered affidavit of merit failed to comply with the requirements of
The circuit court improperly reinstated the default against the defendant. The court found that the time frame in which the defendant failed to answer was relatively short and that the failed fax transmittal was responsible in part for the delay, a reasonable excuse. However, the requirements of setting aside a default are a showing of good cause and the provision of an affidavit of facts showing a meritorious defense. Because it is not clear from the circuit court‘s findings whether that court concluded that the defendant had fabricated his claim regarding the fax transmittal failure, Judge ZAHRA would vacate the default and remand the case for further factual findings regarding whether the defendant had fabricated that claim.
To the extent that the circuit court concludes that the defendant did not commit a fraud on the court, the circuit court should rule on the defendant‘s motion for summary disposition.
NEGLIGENCE — MEDICAL MALPRACTICE — AFFIDAVIT OF MERIT — DEFAULT.
Where an affidavit of merit was filed with the complaint in a medical malpractice action, the affidavit is presumptively proper until the defendant timely answers the complaint, testing the adequacy of the complaint and the affidavit; the defendant is not relieved of duty to timely answer the complaint by a postdefault claim that the affidavit was deficient because the health care professional signing it did not meet the statutory requirements for an expert witness in a medical malpractice action (
Bensinger, Cotant & Menkes, P.C. (by Scott R. Eckhold), for the plaintiff.
Before: ZAHRA, P.J., and NEFF and COOPER, JJ.
NEFF, J. Defendant appeals as of right a default judgment and a previous order denying his motion for summary disposition and reinstating a default. We affirm.
I. INTRODUCTION
In this dental malpractice case, we must decide whether defendant had a duty to respond to a summons and complaint given a later judicial determination after an evidentiary hearing that the affidavit of merit filed with the complaint did not comply with
II. FACTS AND PROCEDURE
On August 28, 2001, plaintiff filed suit alleging that defendant committed malpractice in performing a root canal. The complaint was accompanied by an affidavit of merit signed by Mark Nearing, D.D.S., whose dental practice is limited to root canals. Defendant failed to timely answer the complaint, and on October 4, 2001, plaintiff filed a default.
On January 4, 2002, defendant filed an answer to the lawsuit.2 On March 20, 2002, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the statute of limitations was not tolled by the filing of the complaint because the affidavit of merit did not meet the statutory requirements. While that motion was pending, plaintiff moved for discovery sanctions or reinstatement of the default. The trial court denied defendant‘s motion for summary disposition, but granted plaintiff‘s motion to reinstate the default. The trial court concluded that the motion to set aside the default had been improvidently granted and that plaintiff‘s affidavit of merit, while technically deficient, was sufficient to commence the complaint.3
III. STANDARD OF REVIEW
We review de novo a trial court‘s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
A motion to set aside a default or a default judgment is to be granted only if the movant shows good cause and files an affidavit demonstrating a meritorious defense. MCR 2.603(D)(1). Good cause consists of: (1) a
IV. ANALYSIS
The statute of limitations for a medical malpractice action is two years.
An affidavit of merit that is grossly nonconforming to the statutory requirements is not an affidavit of merit that satisfies the statutory filing requirements and does
A
It is undisputed that plaintiff‘s complaint was filed on August 28, 2001, before the expiration of the period of limitations, and the complaint was accompanied by an affidavit of merit signed on July 10, 2001, by Mark V. Nearing, D.D.S. Defendant argues that the affidavit of merit was insufficient to commence the lawsuit and thereby toll the period of limitations because Nearing was not a properly qualified affiant under
Cases cited by defendant that address dismissal in the context of the expiration of the period of limitations, an affirmative defense, are inapposite. Scarsella v Pollak, 461 Mich 547, 550 n 1, 551-552 n 2; 607 NW2d 711 (2000). “[T]he purpose of a tolling provision is to protect a plaintiff from a statute of limitations defense.” Burton v Reed City Hosp Corp, 471 Mich 745, 754-755;
Although this Court has held that a complaint filed with an affidavit that is defective for purposes of
Defendant argues that, because the affidavit was signed by a person unqualified as an expert witness under
In White, supra, the plaintiff failed to file an affidavit of merit or security for costs6 with her medical malpractice complaint. The Court observed that the plain language of
We conclude that White does not control in this case. In White, an affidavit was never filed, and it was clear that the statutory requirements were not met. In this case, plaintiff filed a presumably valid affidavit of merit with the complaint.7 According to plaintiff‘s counsel‘s affidavit, at the time he filed the complaint, he believed that the affidavit of merit satisfied the statutory requirements.8 It was only in subsequent judicial proceedings that the affidavit was found to be deficient on the basis of this Court‘s holding in Decker v Flood, 248 Mich App 75; 638 NW2d 163 (2001). In Decker, this Court observed that an endodontist is one who specializes in the practice of endodontics, and, thus, is not a general practitioner within the meaning of the statutory limitations on expert witnesses in medical malpractice cases. Id. at 83-84. However, Decker was not decided until October 26, 2001, after the default in this case was entered, and long after defendant‘s answer was due.
Moreover, in White, the Court expressly noted that, although the plaintiff‘s medical malpractice complaint appeared to be deficient with regard to stating a claim for medical malpractice, the deficiencies did not relieve the defendant of his obligation to file an answer. White, supra at 78 n 7. Likewise, the deficiency in the affidavit in this case did not relieve defendant of his duty to file an answer.
Worse, to rule as defendant urges would create the opportunity for defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the affidavit of merit, depriving plaintiff of the legitimate opportunity to cure a defect if attacked in an answer or affirmative defense. A defendant would suffer no adverse consequences if a postdefault attack on the affidavit were successful. In the meantime, a plaintiff‘s claim is laid to rest as the limitation period expires.
The requirement that a defendant answer a complaint tests the adequacy of the complaint and affidavit. If procedural devices permit a complaint to go unanswered to no disadvantage, the test fails in its purpose. We decline to extend the holding in White, in which the affidavit was nonexistent, to the circumstances of this case.
C
The remaining question is whether the trial court abused its discretion in failing to set aside the default.
The ruling on a motion to set aside a default or a default judgment is entrusted to the discretion of the trial court. Where there has been a valid exercise of discretion, appellate review is sharply limited. Unless there has been a clear abuse of discretion, a trial court‘s ruling will not be set aside. [Alken-Ziegler, supra at 227 (citations omitted).]
It is clear that the court was not persuaded by defendant‘s assertion that he had a reasonable excuse for failing to timely answer the summons and complaint. Viewing the record, we find no basis for ruling otherwise.
It is undisputed that defendant was served with the summons and complaint on September 7, 2001. Twelve days later, on September 19, 2001, defendant‘s employee allegedly faxed the summons and complaint to the insurance carrier. However, defendant‘s phone records showed no charge for a long distance call on the alleged date of the fax. There was no contact with the insurance carrier to advise it of the summons and complaint, other than the alleged fax, and there was no follow-up to determine whether the fax was received. The insurance carrier had previous notice of the lawsuit because it was provided with the statutory notice of intent to file a claim in March 2001. Considering the facts on which the court acted, an unprejudiced person cannot say that there is no justification or excuse for the court‘s ruling. Id. at 228.
Although not directly relevant to the grounds for setting aside the default, the court‘s finding that defendant misled the court was germane to the court‘s considerations. At the hearing in December 2001, de-
An appellate court may not substitute its judgment in matters falling within the discretion of the trial court. Alken-Ziegler, supra at 228. The trial court‘s decision to reinstate the default is entitled to great deference. Id. We find no circumstances warranting reversal.
Affirmed.
COOPER, J., concurred.
ZAHRA, J. (concurring in part and dissenting in part). This case presents two distinct issues: (1) Whether a medical malpractice defendant is relieved of the duty to timely answer or otherwise respond to a complaint where the complaint was filed with a defective affidavit of merit and (2) whether the trial court properly reinstated a default that the court had previously set aside. I agree with the majority that defendant was required to answer or otherwise timely respond to the complaint, notwithstanding the defective affidavit of merit. Although the affidavit of merit was defective under
However, I disagree with the majority‘s conclusion that there are sufficient facts in the record to support the conclusion that defendant was properly defaulted. It is not clear from the trial court‘s findings whether the trial court concluded that defendant fabricated his claim that the failure to transmit the summons and complaint to his insurer was the product of excusable clerical error. I would vacate the default and remand for further factual findings on whether defendant had fabricated this claim. If the trial court concludes that defendant fabricated the facts supporting his motion to set aside the default, the default judgment should be reinstated and the trial court should impose monetary sanctions against defendant pursuant to MCR 2.114(E). If, however, the trial court concludes that defendant‘s claim of excusable clerical error was not fabricated, the trial court abused its discretion by reinstating the default. The ensuing default judgment should be set aside, and the trial court should rule on defendant‘s motion for summary disposition.
I. A MEDICAL MALPRACTICE DEFENDANT CANNOT UNILATERALLY DETERMINE THAT A PROFFERED AFFIDAVIT OF MERIT FAILS TO COMPLY WITH MCL 600.2912d
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The best measure of intent is the words used by the Legislature. Lansing Mayor v Pub Service Comm, 470 Mich 154, 164; 680 NW2d 840 (2004). “Where the language is unambiguous, ‘we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.‘” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002), quoting DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000); see also Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). A provision of law is ambiguous when it irreconcilably conflicts with another provision or is equally susceptible to more than a single meaning. Lansing Mayor, supra at 166. “Where the language of a statute is of doubtful meaning, a court must look to the object of the statute in light of the harm it is designed to remedy, and strive to apply a reasonable construction that will best accomplish the Legislature‘s purpose.” Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). Moreover, the Legislature is pre-
Applying these principles of statutory construction, I conclude, contrary to defendant‘s argument, that the use of the phrase “in compliance with
We must presume that the Legislature was aware of established court procedure at the time it enacted this legislation. It is exclusively the province of the courts to determine the sufficiency of pleadings, the admissibility of evidence, and the efficient administration of justice in the courts. Nothing in
In an action alleging medical malpractice, a party named as a defendant in the action may, instead of answering or otherwise pleading, file with the court an affidavit certifying that he or she was not involved, either directly or indirectly, in the occurrence alleged in the action. [Emphasis added.]
Thus, in limited situations, the Legislature expressly granted to medical malpractice defendants the unilateral authority to avoid answering or otherwise filing a responsive pleading to a medical malpractice complaint. Had the Legislature intended to allow medical malpractice defendants to unilaterally determine whether an affidavit of merit failed to comply with the provisions of
II. THE TRIAL COURT IMPROPERLY REINSTATED THE DEFAULT AGAINST DEFENDANT
Defendant moved to set aside the default on December 10, 2001. Under MCR 2.603(D)(1), “[a] motion to set aside a default ... shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.” The good cause and meritorious defense elements of a motion must be considered sepa-
In regard to the affidavit of meritorious defense requirement, defendant proffered an affidavit identifying the factual basis of his defense. Defendant‘s affidavit, in general, averred that he did not breach the applicable standard of care and that the cause of plaintiff‘s injury stemmed from past chronic infections resulting from two previous root canals not performed by defendant.
The trial court granted defendant‘s motion to set aside the default. The trial court found the time frame in which defendant failed to answer was “relatively short,” and that the “failed fax transmittal” was in part responsible for the delay and constituted a “reasonable excuse.”
After defendant filed his motion for summary disposition based on plaintiff‘s defective affidavit of merit, plaintiff filed a motion requesting the trial court reconsider its order setting aside the default. Trial courts have discretion to reconsider previous rulings. MCR 2.119(F)(3) provides:
After conducting a hearing, the trial court issued a written opinion and order denying defendant‘s motion for summary disposition and granting plaintiff‘s motion to reinstate the default, finding that “two factors were not argued or made known to the Court at the time of the motion to set aside the default and the Court was therefore misled at the time of the initial ruling on this matter.”
The trial court, in addressing the first factor, stated that
it appears from the discovery that has been conducted by way of phone records and the testimony of Defendant‘s office manager, Mona Wilson, that it is questionable whether a good faith effort to transmit the summons and complaint by fax as alleged at the original motion to set aside the default is accurate. The testimony of Mona Wilson is that she did make this attempt, however, the phone records do not establish that any long distance call was made or billed to her phone system on the date of the alleged fax. This evidence removes the possibility that a long distance call was misdialed and the information faxed to the wrong number. The phone records established that there was no long distance call on the relevant date. It appears that a phone connection was not made on that date to a long distance number that would have allowed the machine to process the fax and these facts contradict the affidavit of Mona Wilson.
The trial court stated that it found “questionable,” whether there was “a good faith effort to transmit the
However, where there are allegations indicating that fraud has been committed on the court, it is generally an abuse of discretion for the court to decide the motion without first conducting an evidentiary hearing into the allegations. Rapaport v Rapaport, 185 Mich App 12, 16; 460 NW2d 588 (1990); St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 214-215; 238 NW2d 806 (1975); but see Michigan Bank-Midwest, supra at 643 (no evidentiary hearing is required where a party alleged to have committed fraud is not entitled to relief on certain alternative grounds). Here, while there may be evidence suggesting that defendant fabricated his claim, the absence of a long distance phone record on the day the fax was attempted does not necessarily defeat defendant‘s assertion that the fax was not received because of clerical error. As mentioned, Wilson‘s affidavit explains that she “did not receive any verification that the faxed transmittal had a communication problem and was not received by the ProNational
The trial court also addressed a second basis for granting plaintiff‘s motion to reconsider setting aside the default. The trial court noted that defendant had argued in his brief in support of setting aside the default that Michigan favors meritorious litigation and that manifest injustice would result if defendant were not able to present proof to the trier of fact. The trial court held:
These arguments were made by the Defendant and relied upon by the Court in its assessment of its ruling in setting aside the default. What has unfolded subsequent to that ruling, however, is the Defendant‘s argument that the summons and complaint must now be dismissed with prejudice because the Plaintiff‘s Affidavit of Merit was signed by an expert in the field of endodontics concerning this particular root canal which gives rise to this action rather than someone in the field of general dentistry.
Further, the trial court stated:
It is patently unfair to allow the Defendant to successfully assert in his request to set aside the default that all litigants, whenever possible, should have their day in court
I conclude that the trial court abused its discretion in reinstating the default on this ground. The court rule addressing the setting aside of a default has only two elements. The defaulted party must show good cause for not timely pursuing the defense and “an affidavit of facts showing a meritorious defense.” MCR 2.603(D)(1). Nothing in the court rule precludes a once-defaulted party from pursuing a defense other than the defense pleaded in the affidavit of meritorious defense under MCR 2.603(D). The requirement of an affidavit of meritorious defense essentially prevents a defaulted party from merely denying the plaintiff‘s allegations in a conclusory manner. See Miller v Rondeau, 174 Mich App 483, 488; 436 NW2d 393 (1988). To the extent that the trial court reinstated the default merely because it did not approve of defendant pursuing a statute of limitations defense, the trial court erred.
III. CONCLUSION
Defendant lacked authority to ignore plaintiff‘s complaint, notwithstanding the defective affidavit of merit. I would vacate the default and the ensuing default judgment, and remand for an evidentiary hearing on the issue whether defendant‘s claim of clerical error to establish good cause for the failure to timely or otherwise respond to the complaint was fraudulent. To the extent the court concludes that defendant did not commit a fraud on the court, the trial court should rule on defendant‘s motion for summary disposition.2