ANGELA R ROSA V GARY HENNING
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STATE OF MICHIGAN
COURT OF APPEALS
ANGELA R. ROSA and JOHN B. ROSA,
UNPUBLISHED
May 31, 2007
Plaintiffs-Appellees,
V
No. 268651
Benzie Circuit Court
LC No. 05-007272-NO
GARY HENNING,
Defendant-Appellant.
Before: Cooper, P.J., and Murphy and Neff, JJ.
PER CURIAM.
Defendant appeals as of right from the circuit court’s orders entering a default judgment
against him, and denying his motion to set the default aside. We affirm. This case is being
decided without oral argument in accordance with MCR 7.214(E).
Defendant, a resident of Florida, owned a fenced and boarded-up structure on Main Street
in Honor, Michigan. Plaintiff Angela Rosa filed a premises liability action in February 2005,
asserting that she was injured by a hazardous condition on that property. Plaintiff John Rosa, her
husband, alleged loss of consortium.1
Plaintiffs attempted to notify defendant of the proceedings against him via several
mailings, certified and regular, sent to defendant at Box 9952, Panama City, Florida, 32417. The
certified mail went unclaimed, and the regular mail was neither answered nor returned. The trial
court eventually allowed service of process by posting and first class mail, but defendant still did
not respond.
On June 1, 2005, the court entered a default judgment in the amount of $125,152.25. The
trial court sent notice of that judgment to defendant, at the same address through which plaintiffs
had attempted to achieve service. Defendant acknowledges that he received that mailing, but
insists that this was the first he learned of the suit.
1
Because John Rosa’s interest in this case is derivative of that of Angela Rosa, references to the
singular plaintiff in this opinion will refer exclusively to Angela.
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On June 20, 2005, defendant filed an objection to the judgment, and a motion to set aside
the default, asserting lack of actual notice. Defendant additionally offered affirmative defenses,
including that plaintiff was a trespasser to whom he had no duty.
Plaintiffs scheduled a deposition of defendant for October 14, 2005, then rescheduled, to
accommodate defendant’s schedule, for November 23, 2005. Defendant neither objected nor
appeared.
After hearing arguments on defendant’s motion on February 7, 2006, the trial court stated
that defendant might have a meritorious defense, but added:
the problem is, you know, [defendant], consistent with his past conduct, doesn’t
even show up for the deposition when they want to try and ask him some
questions about it. And I would say that seems to be fairly typical of—if it seems
to be legal mail, he’s not interested. We’ve been through this before with
[defendant] in other cases.
***
I made [plaintiffs’ counsel] come in because I wasn’t satisfied with the trail he left
trying to get service. And . . . he made a showing and convinced me, but I had
remarked then about [defendant]’s penchant for not wanting to pick up his mail if
it appeared to be a legal filing against him. So particularly in light of his failure to
show up for the deposition related to this very motion, the Court will deny the
motion to set aside the default.
We review a trial court's decision on a motion to set aside a default or a default judgment
for a clear abuse of discretion. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
“[A]n abuse of discretion occurs only when the trial court's decision is outside the range of
reasonable and principled outcomes.” Id.
“A motion to set aside a default or a default judgment, except when grounded on lack of
jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of
facts showing a meritorious defense is filed.” MCR 2.603(D)(1). Good cause is “a procedural
irregularity or defect,” or “a reasonable excuse for failure to comply with the requirements that
created the default . . . .” Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 233; 600
NW2d 638 (1999).
Defendant first argues that the mailed notices were deficient for using the wrong address.
Defendant asserts that he uses an address in Panama City Beach, Florida, but that plaintiffs sent
all their mailings to Panama City in that state. However, it is undisputed that plaintiffs
consistently used the correct Post Office Box No., 9952, and ZIP code, 32417.
We take judicial notice of the following information, gathered from the official website
of the United States Postal Service, http://zip4.usps.com/zip4/welcome.jsp. Although the 32417
ZIP code applies to Panama City, Panama City Beach is an acceptable variant. It seems clear
that where defendant’s correct name, box number, state, and ZIP code were used, defendant’s
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mail would be properly delivered whether the city was given as “Panama City” or “Panama City
Beach.”
Defendant has failed to show that plaintiffs’ use of Panama City, instead of Panama City
Beach, in their attempts to serve process on him was an irregularity excusing him from his duty
to defend.
Defendant alternatively argues that his travel schedule would have kept him from
receiving the mailed notices even if they were delivered to the correct address. However,
defendant does not specifically assert that he was absent from his Florida address at the times of
the mailings, nor does he provide evidence of travel during those time periods. Defendant’s
purported travel schedule is not a reasonable excuse for the claimed failure to receive plaintiffs’
mailings.
Defendant next argues that the posted notice that was used in this instance was deficient.
MCR 2.106(E) authorizes a trial court to order service of process by mailing and posting.
Subrule (1) requires “posting a copy of the order in the courthouse and 2 or more other public
places as the court may direct . . . .” In this case, the order allowing for posted notice specified
“posting . . . at the Benzie County Courthouse, the United States Post Office in Honor, Michigan
and Defendant’s property located at 10889 Main Street, Honor, Michigan.”
Defendant argues that posting on his property did not satisfy the requirement for posting
at a public place. However, defendant does not suggest that the posting at his property was not
in plain view to the general public. The purpose of notice is to inform a person of a threat to his
or her interests, and to provide that person an opportunity to respond. See Dow v Michigan, 396
Mich 192, 205; 240 NW2d 450 (1976). Notice should take the form of “efforts one desirous of
actually informing another might reasonably employ.” Id. at 211. We find that “public place”
for purposes of posted notice simply means a place where the general public is likely to see a
notice. The Main Street address of defendant’s property indicates that notice posted there was
accessible to the public; absent evidence to the contrary, we find this sufficiently public to satisfy
MCR 2.106(E).
Defendant also argues that plaintiffs obtained their judgment through fraud. MCR
2.603(D)(3) states that a default may be set aside for the reasons set forth in MCR 2.612, whose
subrule (C)(1)(c) specifies fraud as a ground for relief from judgment. Defendant argues that
because plaintiff admitted to a third person that she fell down was because she was drunk, the
assertion that defendant is at fault is fraudulent. However, while intoxication may have therefore
been a factor in the fall, we cannot say that it was the exclusive reason for it. A dangerous
condition on defendant’s property may also have contributed substantially to the fall. Defendant
has failed to produce evidence that plaintiffs had no good-faith basis for hoping to prevail in their
lawsuit. We find no fraud.
Defendant next argues that the trial court improperly denied his motion out of passion or
bias. Again, we disagree.
The trial court stated that defendant’s history of not responding to plaintiffs’ mailings
was “consistent with his past conduct,” adding, “[w]e’ve been through this before,” and spoke of
defendant’s “penchant for not wanting to pick up his mail if it appeared to be a legal filing
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against him.” Defendant argues that these statements indicate bias. However, the trial court did
not simply refuse to allow defendant to contest the default judgment, but instead entered an order
giving him time to file a brief in support of his motion to set the default aside. At the hearing on
the motion, the court reported how it earlier “wasn’t satisfied” with plaintiffs’ attempt to achieve
service, and that its intention to consider the results of a scheduled deposition was frustrated for
defendant’s failure to appear for it. This record does not show that the trial court set aside its
reasoned judgment in deference to passion or bias in denying defendant’s motion to set aside the
default.
Defendant argues that the trial court erred in faulting him for failing to appear for the
November 2005, deposition for which he was subpoenaed, on the ground that there was no
indication that his travel expenses would be paid. This argument is without merit.
MCR 2.305(C)(3) provides that a “court may order” a nonresident defendant to appear in
Michigan for a deposition “on terms and conditions that are just, including payment by the
plaintiff of the reasonable expenses of travel, meals, and lodging incurred by the deponent in
attending.” This wording authorizes a court to order reimbursement of travel expenses, but does
not mandate such accommodation. Nor does defendant cite authority for the proposition that a
nonresident party subpoenaed for a deposition may simply disregard that subpoena if he or she is
not promised reimbursement of attendant expenses. The trial court did not err in noting
defendant’s failure to appear for his deposition as another instance of his willful failure to defend
this action.
We find no abuse of discretion in the trial court’s decision to deny defendant’s motion to
set aside the default judgment.
Affirmed.
/s/ Jessica R. Cooper
/s/ William B. Murphy
/s/ Janet T. Neff
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