BAYSHORE CANVAS INC V MOUNT HOLLYWOOD LTD
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STATE OF MICHIGAN
COURT OF APPEALS
BAYSHORE CANVAS, INC.,
UNPUBLISHED
November 24, 1998
Plaintiff-Counterdefendant-Appellee,
v
No. 204333
Macomb Circuit Court
LC No. 94-004603 CK
MOUNT HOLLYWOOD LIMITED
PARTNERSHIP,
Defendant-Counterplaintiff,
and
FREDERICK W. DUEMLING, Trustee of the
REVOCABLE LIVING TRUST UTA DTD,
Defendant,
and
KENNETH MITAN AND KEITH J. MITAN,
Defendants-Appellants,
and
MITAN AUTO MALL MANAGEMENT
DEPARTMENT, INC.,
Defendant.
Before: Smolenski, P.J., and McDonald and Doctoroff, JJ.
PER CURIAM.
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Defendants Kenneth Mitan and Keith J. Mitan appeal as of right from the May 21, 1996, entry
of a default judgment granting plaintiff’s damages, interest, and costs in the amount of $7,491.94.
Defendants also appeal the trial court’s failure to grant a motion to set aside a default judgment. We
affirm.
Defendants argue on appeal that because they were not served properly under MCR
2.105(A)(2) at the commencement of this suit, the court never had personal jurisdiction over them and
could not enter a personal decree against them. We disagree.
Issues regarding service of process generally do not implicate jurisdictional issues, as the court
rules concerning service of process are not intended to limit or expand the jurisdiction given the
Michigan courts over a defendant, but are meant to satisfy due process. MCR 2.105(J)(1). Here,
although plaintiff mailed a summons and a copy of the complaint to defendants by registered mail, return
receipt requested, plaintiff failed to restrict delivery to the addressees, as required by MCR
2.105(A)(2). However, defendants clearly had notice of plaintiff’s suit against them in their individual
capacities. The summonses and complaints were apparently received by the office receptionist at Mitan
& Associates, P.C. Keith J. Mitan obviously received the complaint, as he answered as counsel for
Mount Hollywood Limited Partnership and Mitan Auto Mall Management Department, Inc. He
acknowledged at the hearing on May 1, 1995, that if the trial court did not grant the motion to amend
the caption, he would have to file an answer on behalf of both himself and Kenneth. However, no
answer was ever filed. Therefore, because defendants had actual notice of the lawsuit filed against
them, we conclude that the trial court did not err in denying the motion to amend the caption to remove
the Mitan defendants or in entering a default judgment against them. MCR 2.105(J)(3); Bunner v
Blow-Rite Insulation Co, 162 Mich App 669, 673-674; 413 NW2d 474 (1987); Alycekay Co v
Hasko Construction Co, Inc, 180 Mich App 502, 505-506; 448 NW2d 43 (1989).
Defendants also assert that entry of the default judgment on May 21, 1997, was in error
because they had not been properly served with notice of the entry of default on June 7, 1995.
However, at the hearing on plaintiff’s motion for entry of a default judgment, the court found that
defendants had received notice of entry of default. We cannot conclude from the record before us that
the trial court’s finding was clearly erroneous. Furthermore, defendants received notice of plaintiff's
motion to enter the default judgment and, therefore, had an opportunity to defend. Accordingly,
defendants were not prejudiced by the alleged error. Alycekay, supra, 180 Mich App 506-507.
Finally, defendants contend that the trial court erred in failing to grant their motion to set aside
the default judgment. However, because this issue was never properly before the trial court, and the
court never ruled on it, we decline to address it. Bowers v Bowers, 216 Mich App 491, 495; 549
NW2d 592 (1996). Furthermore, defendants’ motion did not indicate a good cause for setting aside
the default, as required by MCR 2.603(D)(1). In their motion, defendants asserted that good cause to
set aside the default judgment existed because they were never personally served. However, we have
already concluded that, despite the technical defect in the service of process, defendants received actual
notice of the lawsuit. In addition, the trial court found that defendants received notice of entry of the
default.
Affirmed.
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/s/ Michael R. Smolenski
/s/ Gary R. McDonald
/s/ Martin M. Doctoroff
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