FARMERS INS EXCHANGE V GLORIA CONSTANCE COBBIN
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STATE OF MICHIGAN
COURT OF APPEALS
FARMERS INSURANCE EXCHANGE,
Subrogee of FELICIA DORSEY,
UNPUBLISHED
November 15, 2005
Plaintiff-Appellant,
v
No. 255482
Wayne Circuit Court
LC No. 98-833358-CZ
GLORIA CONSTANCE CORBIN,
Defendant-Appellee,
and
GEORGE ATKINS,
Defendant.
Before: Murphy, P.J., and Sawyer and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order setting aside a default judgment, discharging
and declaring null and void a certificate of levy on property for which a writ for seizure and sale
had been issued, and dismissing this case as to defendant Gloria Constance Corbin.1 We affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
After filing this lawsuit, plaintiff provided a return of service showing that defendant was
served on October 24, 1998, at 5182 South Martindale in Detroit. A default was entered on
November 28, 1998, followed on December 3, 1998, by a judgment for $39,233.40. In a second
motion to set aside this judgment, evidence established that defendant did not live and was not
present at 5182 Martindale on October 24, 1998. A moving van contract showed that she moved
from the Martindale address to 235 Winward Court in May 1998. A September 22, 1998, deed,
listing her address as the Winward Court address, showed that she sold the Martindale property
on that date.
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The accurate spelling of defendant’s last name is in fact “Cobbin.”
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Finally, medical records showed that she was living at the Winward Court address in
October 1998. These records also showed that she had a colectomy in September 1998, resulting
in a permanent colostomy, that she was readmitted to the hospital on October 13, 1998, and
discharged on October 15, 1998, with a home care nurse, and that a November 1, 1998, note
admitting her to Henry Ford Hospital, just seven days after the purported service, stated that “she
feels quite weak and is bed ridden.” This suggests she would have had difficulty answering the
door to accept service on the stated date.
Almost two years later, on September 12, 2000, the court clerk entered a writ of
execution regarding the Winward Court property that correctly listed defendant’s address as
Winward Court. There is no endorsement on the form showing that defendant received the writ,
and nothing else in the record to show that she was ever aware of this document. Defendant died
in February 2001. The trial court determined that she was not personally served, and concluded
that it did not have personal jurisdiction over her.
MCR 2.603(D) addresses motions to set aside default judgments. MCR 2.603(D)(2)(b)
provides that a default judgment can only be set aside if a motion is filed within twenty-one days
after entry; however, this restriction applies only “if personal service was made on the party
against whom the default was taken.” Personal service was not made on defendant and thus, the
twenty-one-day deadline did not restrict the trial court from providing relief.
MCR 2.603(D)(3) provides that a default judgment can be set aside in accordance with
MCR 2.612. MCR 2.612(B) provides for relief from judgment when “[a] defendant over whom
personal jurisdiction was necessary and acquired, but who did not in fact have knowledge of the
pendency of the action, . . . enter[s] an appearance within 1 year after final judgment, and . . .
shows reason justifying relief from the judgment and [that] innocent third persons will not be
prejudiced.” Moreover, MCR 2.612(C)(1)(d) and (f) provide for relief from judgment when a
judgment is void or there is “any other reason justifying relief from the operation of the
judgment.” MCR 2.612(C)(2) does not impose a one-year limit, but provides that a motion for
relief brought under subsections (C)(1)(d) and (f) must be made within a reasonable time.
These rules do not expressly speak to the acquisition of personal jurisdiction or relief
from judgment when personal jurisdiction was not acquired. However, in Alycekay Co v Hasko
Constr Co, 180 Mich App 502, 505-506; 448 NW2d 43 (1989), this Court stated:
Where service of process is defective, the trial court may be deprived of
personal jurisdiction over the defendant and left without legal authority to render
a judgment. Dogan v Michigan Basic Property Ins Ass'n, 130 Mich App 313,
320; 343 NW2d 532 (1983).
We conclude that the failure to mail a copy of the complaint to the
principal office in this case did not deprive the trial court of personal jurisdiction.
First, there is some indication that no corporate office for Jordan existed in
November, 1986. Secondly, the record reveals the trustee received actual notice
of the claim. Therefore, the service of process which was effected satisfied
fundamental requirements of due process and was not a substantial defect.
In Dogan, supra, this Court stated:
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Under the present law, the proper basis for vacating the default judgment
where service of process was defective is that the defective service deprived the
trial court of personal jurisdiction over the defendant and the trial court was,
therefore, without legal authority to render a judgment (by default or otherwise).
In the present case, because we have found that defendant is estopped from
raising the defense of improper service, we find the defendant’s claim to be
without merit. [130 Mich App at 320].
Unlike the defendant in Alycekay Co, supra, plaintiff has not shown that defendant received
actual notice of the lawsuit. Moreover, there is no basis for finding that defendant should be
estopped from raising the defense. Although defendant did not challenge the 1998 judgment or
the 2000 writ of execution, there is no showing that she was ever aware of these documents
before her death in February 2001.
Plaintiff’s argument regarding actual notice rests on a post-mortem July 2001 contact
from an attorney purporting to represent defendant’s interests, and a post-mortem August 2001
garnishment. However, there has never been a substitution of parties or any documentation
showing that anyone has been legally appointed to represent defendant’s interests, let alone a
showing that an attorney was authorized to speak on her behalf as of July 2001. Although
defendant’s daughter appears at least partially responsible for some mistaken information and
delay, she is not a party and thus, an estoppel theory could not be based on her actions or
inaction. Given that defendant was never served and there was no showing that she had actual
notice of the lawsuit before her death, the trial court did not err in holding that it lacked personal
jurisdiction over defendant and in dismissing the lawsuit against her.
Affirmed. Defendant may tax costs.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Patrick M. Meter
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