ANNE WILHELM V TARIF H MUSTAFAAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ANNE WILHELM, Personal Representative of the
ESTATE of MARGARET KUKLA, Deceased,
December 8, 2000
Wayne Circuit Court
LC No. 96-613486-NH
TARIF H. MUSTAFA, M.D.,
DENNIS M. ZILKOWSKI, M.D., and OAKWOOD
UNITED HOSPITAL, d/b/a OAKWOOD
February 2, 2001
Before: Collins, P.J., and Jansen and Zahra, JJ.
In this medical malpractice action, plaintiff Anne Wilhelm appeals as of right from the
jury's verdict of no cause of action. Plaintiff challenges the trial court's denial of her motions
seeking sanctions against defendant for his failure to timely file the affidavit of meritorious
defense required under MCL 600.2912e; MSA 27A.2912(5). We affirm.
On March 19, 1996, plaintiff filed a complaint alleging that defendant Tarif H. Mustafa,
M.D., was negligent in his medical treatment of decedent Margaret Kukla, plaintiff 's mother, and
that his negligence resulted in Kukla's death.1 On the first day of trial, April 20, 1998, plaintiff
moved to strike defendant's answer, enter a default in favor of plaintiff, and allow plaintiff to
present proofs in support of entry of a default judgment, because defendant failed to timely file
an affidavit of meritorious defense pursuant to MCL 600.2912e; MSA 27A.2912(5).
Later that same day, defendant filed an affidavit of meritorious defense stating that Dr.
Gordon Moss would testify as an expert internist on behalf of defendant.
acknowledged that the affidavit was late under the statute. Plaintiff argued that the trial court
was without jurisdiction to hear the case because of defendant's failure to comply with the
statutory requirements. The trial court gave defendant three days to respond to plaintiff 's motion
to strike defendant's answer and to enter a default, and stated that if plaintiff needed more time to
deal with any information contained in the late affidavit, she should request an adjournment. The
court noted plaintiff 's failure to include in the final pretrial order the procedural issue she was
attempting to rely on the first day of trial, and plaintiff 's silence on the matter of the affidavit for
the approximately two years during which discovery proceeded.
Following the conclusion of plaintiff 's case in chief, plaintiff moved for a directed verdict
in her favor on the basis, in part, of the untimely filing of the affidavit of meritorious defense.
Plaintiff argued that defendant should be precluded from offering a defense as a result of the
procedural deficiency. The court denied the motion. Plaintiff again raised the issue in an attempt
to preclude defendant from calling as a witness Dr. Moss, defendant's expert internist and the
physician who signed the untimely affidavit of meritorious defense. The trial court denied
plaintiff 's motion and allowed Dr. Moss to testify. Following the conclusion of defendant's
proofs, plaintiff renewed her motion for a directed verdict. The trial court deferred ruling on the
issue until the following day.
The jury returned a verdict of no cause of action in favor of defendant before the trial
court's decision on plaintiff 's motion. In subsequently denying plaintiff 's motion for a directed
verdict, the trial court found that plaintiff waived her right to present the affidavit of merit issue
by failing to present the issue as a possible defense in the final pretrial order, that the relevant
statute does not provide a remedy for failure to comply with the statutory requirements and
plaintiff 's requested remedy of default was too extreme, that as soon as the omission was brought
to the attention of defendant, he immediately filed the affidavit of meritorious defense with the
court, and that plaintiff did not suffer any substantive prejudice as a result of defendant's failure
to file the affidavit. The court concluded that to allow both parties to present their arguments and
witnesses to the jury was the best way to resolve the legal controversy.
On June 8, 1998, plaintiff filed a motion for judgment notwithstanding the verdict and, in
the alternative, a new trial, on the basis that defendant failed to timely file the affidavit of
meritorious defense. At the hearing on the motion both parties reiterated their earlier arguments
and the court again denied plaintiff 's motion.
Plaintiff argues on appeal that because defendant failed to comply with the mandatory
requirements of MCL 600.2912e; MSA 27A.2912(5), the trial court erred in allowing him to
present a defense in this case. Statutory interpretation is a question of law that we review de
novo on appeal. VandenBerg v VandenBerg, 231 Mich App 497, 499; 586 NW2d 570 (1998).
Section 2912e provides, in pertinent part:
(1) In an action alleging medical malpractice, within 21 days after the
plaintiff has filed an affidavit in compliance with section 2912d, the defendant
shall file an answer to the complaint. Subject to subsection (2), the defendant or,
if the defendant is represented by an attorney, the defendant's attorney shall file,
not later than 91 days after the plaintiff or the plaintiff 's attorney files the affidavit
required under section 2912d, an affidavit of meritorious defense signed by a
health professional who the defendant's attorney reasonably believes meets the
requirements for an expert witness under section 2169.
Plaintiff first contends that because the requirements of § 2912e are mandatory,
defendant's failure to timely file the affidavit of meritorious defense deprived the trial court of
subject matter jurisdiction and the court was therefore precluded from considering defendant's
defenses. We disagree.
We acknowledge that the use of the word "shall" indicates that the requirements of §
2912e are mandatory. Scarsella v Pollak, 232 Mich App 61, 63-64; 591 NW2d 257 (1998), aff 'd
461 Mich 547; 607 NW2d 711 (2000).
However, a court's subject-matter jurisdiction is
determined only by reference to the allegations listed in the complaint. Neal v Oakwood Hosp
Corp, 226 Mich App 701, 707; 575 NW2d 68 (1997). If it is apparent from the allegations that
the matter alleged is within the class of cases with regard to which the court has the power to act,
then subject-matter jurisdiction exists. Id. See also Bowie v Arder, 441 Mich 23, 39; 490 NW2d
568 (1992), quoting Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938). Plaintiff
cites no authority, and we know of none, to support the proposition that where a complaint has
been validly filed, and that complaint contains allegations that bring the case within the
jurisdiction of the circuit court, a defendant's failure to comply with response requirements can
divest the court of jurisdiction, or that somehow the court may retain jurisdiction over the
complaint, but have no jurisdiction to entertain defendant's defenses.
A court either has
jurisdiction over the subject matter or it does not. Here, it is apparent from the allegations in
plaintiff 's complaint that the matter alleged, i.e., negligence, is within the class of cases over
which the circuit court is empowered to act. Neal, supra at 708. Therefore, the trial court had
jurisdiction, and defendant's failure to timely file his affidavit of meritorious defense did not
affect the court's power to hear the case.
Plaintiff next argues that even if the requirements of § 2912e are not jurisdictional,
because they are mandatory the trial court was required to enter a default against defendant or
otherwise preclude defendant from presenting a defense as a consequence of defendant's failure
to comply with those requirements. Again, we disagree.
While the requirement that a defendant file an affidavit of meritorious defense is
mandatory, the statute is silent with regard to the remedy for noncompliance. There is nothing in
the statute itself to indicate that default is the mandatory, or even appropriate, remedy when a
defendant fails to file an affidavit of meritorious defense. Indeed, in VandenBerg, supra at 502503, this Court found that dismissal is not always warranted when a medical malpractice plaintiff
fails to file an affidavit of merit as required under MCL 600.2912d; MSA 27A.2912(4).2 This
Court noted that in revising § 2912d in 1993 to require, among other things, that a plaintiff file an
affidavit of merit signed by a health professional, the Legislature eliminated the portion of §
2912d providing that the trial court could dismiss the complaint if the requirements of the statute
were not met. VandenBerg, supra at 501. This Court further observed that even under the
version of § 2912d that specified consequences for noncompliance, dismissal was not mandated.
VandenBerg, supra at 501.
Likewise, in revising § 2912e, the Legislature eliminated the language providing that the
court could strike the defendant's answer and enter a default against the defendant if the
defendant failed to comply with the requirements of that section of the statute. Also, just as the
dismissal for failure to comply with the statutory requirements was not mandated under the
preamendment version of § 2912d, the severe sanction of default was not mandatory under the
earlier version of § 2912e, but was left to the court's discretion.3 Accordingly, we conclude that
the trial court was not compelled by the statute to enter a default against defendant for his failure
to timely file an affidavit of meritorious defense.
Moreover, we do not believe that the trial court abused its discretion in refusing to enter a
default against defendant or otherwise preclude him from presenting a defense. Among the
several reasons the court gave for not entering a default against defendant was that plaintiff
waived her right to raise the procedural issue by failing to include it in the final pretrial order. A
party may waive or forfeit an issue by failing to raise it in a timely manner. Greathouse v
Rhodes, 242 Mich App 221, 231; 618 NW2d 106 (2000). "In determining whether an issue or
right is forfeited or waived because it was not timely asserted, our courts have considered both
the diligence of the movant and the prejudice the nonmovant will sustain." Id. at 232.
Here, the court noted that plaintiff did not mention defendant's omission during the
approximately two years of pretrial discovery and procedure, nor did plaintiff include the
procedural matter in the final pretrial order as required by the court. Instead, she waited until the
day of trial to attempt to preclude defendant from defending this action. Clearly, defendant
would have been severely prejudiced had the court ruled that defendant could not present
witnesses or defend against plaintiff after two years of trial preparation.
The court also
concluded that plaintiff would suffer no unfair prejudice if the court allowed the case to proceed,
as defendant's expert was included on defendant's witness list.4 The court noted that it could
have sanctioned both parties—defendant for not filing the affidavit of meritorious defense in a
timely manner, and plaintiff for not including her procedural issue in the final pretrial order—but
on balance determined that justice would best be served by allowing the case to proceed on the
merits. We find no abuse of discretion.
/s/ Jeffrey G. Collins
/s/ Kathleen Jansen
/s/ Brian K. Zahra
Plaintiff also filed suit against defendants Dennis M. Zilkowski, M.D., and Oakwood Hospital.
Zilkowski and Oakwood Hospital settled with plaintiff on April 11, 1997, and are not parties to
Section 2912d imposes on medical malpractice plaintiffs a requirement similar to that imposed
on medical malpractice defendants by § 2912e: a plaintiff must file with its 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." Both provisions were amended
by 1993 PA 78, effective April 1, 1994.
The Author's Commentary on Rule 2.603 in 3 Dean & Longhofer, Michigan Court Rules
Practice (4th ed), p 311, explains that
the court's power to default the defendant under [2.603(A)] is co-extensive with
the court's power of dismissal as applied to the plaintiff for failure to comply with
these rules or any order of court under MCR 2.504(B).
Plaintiff did not challenge in the lower court, nor does she challenge on appeal, the
qualifications of defendant's expert, Dr. Moss. See MCL 600.2169; MSA 27A.2169.