KENNETH SCARGALL V RANDY LEE WHITMORE
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH SCARGALL,
UNPUBLISHED
August 6, 2002
Plaintiff-Appellant,
v
No. 231718
Macomb Circuit Court
LC No. 99-005354-NO
RANDY LEE WHITMORE,
Defendant,
and
EASTPOINTE’S VFW POST
RACHELLE SHAFER POST,
#6782,
a/k/a
Defendant-Appellee.
Before: Murray, P.J., and Sawyer and Zahra, JJ.
MEMORANDUM.
Plaintiff appeals as of right from the circuit court’s order dismissing his dramshop action
against defendant Eastpointe’s VFW Post #6782. Defendant VFW Post moved for summary
disposition based on plaintiff’s failure to retain the alleged intoxicated person, defendant
Whitmore, in the litigation. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
After filing suit against both defendants, plaintiff sought and obtained a default and
default judgment against defendant Whitmore. Defendant VFW Post moved for summary
disposition on the basis that plaintiff failed to retain Whitmore in the litigation as required by
MCL 436.1801(5). Plaintiff then moved to set aside his default judgment against Whitmore.
The circuit court denied plaintiff’s motion to set aside the default judgment against Whitmore
and granted summary disposition for defendant.
On appeal plaintiff argues that the circuit court abused its discretion by refusing to set
aside the default judgment pursuant to MCR 2.612(C)(1)(f). We disagree. An attorney’s
negligence is attributable to the client and is normally not grounds for setting aside a default
judgment. Park v American Cas Ins Co, 219 Mich App 62, 67; 555 NW2d 720 (1996). Plaintiff
did not assert any extraordinary circumstances which would justify setting aside the default
judgment under MCR 2.612(C)(1)(f), so the circuit court did not abuse its discretion by refusing
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to do so. Heugel v Heugel, 237 Mich App 471, 479; 603 NW2d 121 (1999). Since plaintiff did
not retain Whitmore in the lawsuit, the circuit court properly dismissed plaintiff’s dramshop
claim. MCL 436.1801(5).
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Brian K. Zahra
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