DENNIS KNOBLOCH V DAVID LANGHOLZ MD
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STATE OF MICHIGAN
COURT OF APPEALS
DENNIS KNOBLOCH, Personal Representative
of the Estate of DAVID KNOBLOCH,
UNPUBLISHED
June 21, 2002
Plaintiff-Appellant,
V
DAVID LANGHOLZ, M.D, REED CITY
HOSPITAL, and SPECTRUM HEALTH – REED
CITY CAMPUS,
No. 231070
Osceola Circuit Court
LC No. 00-8582-NH
Defendants-Appellees.
Before: Jansen, P.J., and Smolenski and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(7).1 We affirm.
I. Facts and Procedural History
This case involves a medical negligence wrongful death claim arising out of the
September 11, 1996 death of David Knobloch. Plaintiff was named personal representative of
Knobloch’s estate on September 22, 1997. On September 16, 1999, plaintiff sent defendants the
required notices of intent to pursue a claim, properly tolling the two year statute of limitations for
asserting wrongful death claims arising out of alleged medical negligence. See MCL
600.5805(5)2 and MCL 600.5852.3 On February 22, 2000, plaintiff filed the complaint in the
1
While the trial court’s order did not specify the subrule under which it granted summary
disposition, because the trial court found the complaint was time-barred by the statute of
limitations, MCR 2.116(C)(7) was theapplicable subrule.
2
MCL 600.5805(5) provides:
Except as otherwise provided in this chapter, the period of limitations is 2
years for an action charging malpractice.
(continued…)
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instant case against defendants. Attached to the complaint was a document titled “Plaintiff’s
Affidavit of Merit Under MCL 600.2912(D)[sic],” signed by Steven G. Meister, M.D., but not
notarized. Dr. Meister asserted in the document that defendants breached the duty of care in
treating Knobloch, and that this breach of duty was the proximate cause of Knobloch’s death.
In July 2000, Defendants moved for summary disposition under MCR 2.116(C)(7).
Defendants first asserted that because the document signed by Dr. Meister was not notarized, it
was not an affidavit within the meaning and requirements of 600.2912d(1)4. Next, defendant
argued that since the document signed by Dr. Meister was not an affidavit, plaintiff’s complaint
was required to be dismissed without prejudice for failure to file an affidavit of merit with the
complaint as required under section 2912d(1). Finally, defendant contended that the filing of the
complaint and purported affidavit failed to toll the statute of limitations on plaintiff’s claim, and
that the statute of limitations had since run and the time for filing plaintiff’s claim had elapsed.
Plaintiff opposed the motion, arguing that because the affidavit of merit is intended to
prevent frivolous claims and not to preclude legitimate claims from being pursued, the failure to
file a notarized affidavit should be treated as a clerical error that does not result in dismissal of
plaintiff’s case. Plaintiff further argued that the affidavit of merit should be treated like a
pleading, with the opportunity to amend being freely granted, and that he should be permitted to
amend his pleadings by filing a notarized affidavit of merit.
The trial court granted defendants’ motion, finding that because the document signed by
Dr. Meister was not notarized, it was a statement rather that an affidavit of merit meeting the
statutory requirements, and that accordingly, the case was required to be dismissed because the
statute of limitations had expired prior to the filing of a valid complaint. Plaintiff filed a motion
(…continued)
At the time plaintiff’s lawsuit was commenced, MCL 600.5805(5) was enumerated as MCL
600.5805(4), and the language of the former subsection (4) and current subsection (5) are
identical.
3
MCL 600.5852 provides:
If a person dies before the period of limitations has run or within 30 days
after the period of limitations has run, an action which survives by law may be
commenced by the personal representative of the deceased person at any time
within 2 years after letters of authority are issued although the period of
limitations has run. But an action shall not be brought under this provision unless
the personal representative commences it within 3 years after the period of
limitations has run.
4
MCL 600.2912d(1) provides, in part:
Subject to subsection (2), the plaintiff in an action alleging medical
malpractice or, if the plaintiff is represented by an attorney, the plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a health professional
who the plaintiff’s attorney reasonably believes meets the requirements for an
expert witness under section 2169.
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for reconsideration on October 11, 2000, which the trial court denied on October 31, 2000. This
appeal now ensues.
II. Standard of Review
Whether a cause of action is barred by a period of limitations is a question of law that we
review de novo. Todorov v Alexander, 236 Mich App 464, 467; 600 NW2d 418 (1999). If a
cause of action is time-barred, then summary disposition is appropriate under MCR 2.116(C)(7).
See McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999). We also review de
novo a trial court’s decision to grant or deny summary disposition pursuant to MCR 2.116(C)(7).
Id. at 200-201, citing Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d 546
(1999). In reviewing whether summary disposition is appropriate under MCR 2.116(C)(7), we
consider all the documentary evidence submitted by the parties and accept the plaintiff's well
pleaded allegations, except those contradicted by documentary evidence, as true. Uncontradicted
allegations are viewed in favor of the plaintiff. Novak, supra at 681-682, citing Iovino v
Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998) and Patterson v Kleiman, 447 Mich
429, 433-435; 526 NW2d 879 (1994).
III. Analysis
Plaintiff first argues that the trial court erred by concluding that the document signed by
Dr. Meister did not constitute an affidavit of merit. We disagree.
As the trial court correctly noted in its order denying plaintiff’s motion for
reconsideration, this Court’s decision in Holmes v Michigan Capital Medical Center, 242 Mich
App 703; 620 NW2d 319 (2000), is directly on point. In reversing the trial court’s decision, this
Court stated in Holmes, supra at 711-714, that:
We first observe that the trial court correctly determined that plaintiff’s
December 1996 statement did not satisfy MCL 600.2912d(1) because it did not
constitute a proper affidavit of merit. The unambiguous statutory language
demands that plaintiff or his attorney “shall file with the complaint an affidavit of
merit signed by a health professional.” MCL 600.2912d(1) (emphasis added). To
constitute a valid affidavit, a document must be (1) a written or printed
declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the
oath or affirmation of the party making it, taken before a person having authority
to administer such oath or affirmation. People v Sloan¸ 450 Mich 160, 177, n 8;
538 NW2d 380 (1995); Black’s Law Dictionary (7th ed). While plaintiff’s
document met the first two requirements, no indication exists that the information
was provided under oath. Even if we assumed that the person who signed the
statement affirmed its contents, no evidence establishes that the affirmation was
made before a person authorized to administer an oath.
***
In this case, however, the December 1996 document completely lacks a
jurat. Because no indication exists that the doctor confirmed the document’s
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contents by oath or affirmation before a person authorized to issue the oath or
affirmation, the document does not qualify as a proper affidavit.3 Sloan, supra.
Accordingly, plaintiff failed to file an affidavit of merit before the
limitation period expired on February 5, 1997, and failed to seek an extension of
the period for filing the affidavit, which MCL 600.2912d(2) provides.
***
Plaintiff’s December 1996 “affidavit” did not comply with MCL
600.2912d and failed to toll the limitation period. Consequently, plaintiff’s
instant action was time-barred. Scarsella [v Pollack, 232 Mich App 61, 64; 591
NW2d 237 (1998)]. We conclude that the trial court erred in denying defendants
summary disposition according to MCR 2.116(C)(7).
3
Thus, even assuming that plaintiff filed the second unsworn document together
with his second complaint in January 1997, the unsworn document likewise did
not represent a valid affidavit of merit. [Parallel citations omitted; emphasis
added.]
Plaintiff further contends that regardless of Holmes, Dr. Meister’s statement complied
with the requirements of MCR 2.113(A) as an affirmation rather than a statement under oath,
because the document states that he is “duly sworn” and that “I would be so willing to testify.”
Thus, plaintiff would have us distinguish Holmes, and find that the document meets the
requirements of an affidavit. We decline the invitation. We note that the Blacks Law Dictionary
definition of affidavit adopted in Holmes recognizes that an affirmation, as well as an oath, must
be “taken before a person having authority to administer such oath or affirmation.” Id. at 711,
620 NW 2d 319, quoting Blacks Law Dictionary (6th ed), p 58. In this case, as in Holmes, the
document at issue lacks a jurat and plaintiff provides no other evidence that Dr. Meister’s
statement was made before a person duly authorized to administer an oath. The absence of a
jurat or other evidence of verification requires a finding that the document fails to constitute an
affidavit. Merrifield v Village of Paw Paw, 274 Mich 550 (1936). See also Kelley v City of
Flint, 251 Mich 691, 695-696; 232 NW2d 407, (1930) Clarke v Wayne Circuit Judge, 193 Mich
33; 159 NW 387 (1916) (syllabus) (“A purported affidavit, on which perjury could not be
assigned if it was wilfully false, would not, in law, be an affidavit at all.”).
Since an affidavit of merit was not filed with the complaint, the complaint is properly
dismissed without prejudice. Scarsella v Pollak, 461 Mich 547, 552; 607 NW2d 711 (2000). In
addition, because the statute of limitations was not tolled and expired well before defendant’s
motion for summary disposition was filed and heard, the trial court correctly found that the
complaint is now time-barred. Id. At 550-553.
IV. Conclusion
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Because plaintiff failed to file an affidavit of merit with his complaint before the statute
of limitations period elapsed, the trial court correctly ruled that plaintiff did not comply with
MCL 600.2912d(1) and that summary disposition pursuant to MCR 2.116(C)(7) was properly
granted in favor of defendants.
Affirmed.
/s/ Kathleen Jansen
/s/ Michael R. Smolenski
/s/ Kurtis T. Wilder
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