KIM SAFFIAN V ROBERT R SIMMONS DDS
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STATE OF MICHIGAN
COURT OF APPEALS
KIM SAFFIAN,
FOR PUBLICATION
July 7, 2005
9:05 a.m.
Plaintiff-Appellee,
v
No. 250645
Cheboygan Circuit Court
LC No. 01-006896-NH
ROBERT R. SIMMONS, D.D.S.,
Defendant-Appellant.
Official Reported Version
Before: Zahra, P.J., and Neff and Cooper, JJ.
ZAHRA, J. (concurring in part and dissenting in part).
This case presents two distinct issues: (1) Whether a medical malpractice defendant is
relieved of the duty to timely answer or otherwise respond to a complaint where the complaint
was filed with a defective affidavit of merit and (2) whether the trial court properly reinstated a
default that the court had previously set aside. I agree with the majority that defendant was
required to answer or otherwise timely respond to the complaint, notwithstanding the defective
affidavit of merit. Although the affidavit of merit was defective under MCL 600.2912d,
defendant did not have the authority to unilaterally determine that the proffered affidavit of merit
failed to comply with the requirements of MCL 600.2912d such that defendant was relieved of
the duty to respond to the complaint. Had the Legislature intended to relieve a defendant of the
obligation to answer or otherwise respond to a complaint filed with a defective affidavit, it would
have specifically provided the defendant with such authority.
However, I disagree with the majority's conclusion that there are sufficient facts in the
record to support the conclusion that defendant was properly defaulted. It is not clear from the
trial court's findings whether the trial court concluded that defendant fabricated his claim that the
failure to transmit the summons and complaint to his insurer was the product of excusable
clerical error. I would vacate the default and remand for further factual findings on whether
defendant had fabricated this claim. If the trial court concludes that defendant fabricated the
facts supporting his motion to set aside the default, the default judgment should be reinstated and
the trial court should impose monetary sanctions against defendant pursuant to MCR 2.114(E).
If, however, the trial court concludes that defendant's claim of excusable clerical error was not
fabricated, the trial court abused its discretion by reinstating the default. The ensuing default
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judgment should be set aside, and the trial court should rule on defendant's motion for summary
disposition.
I. A Medical Malpractice Defendant Cannot Unilaterally Determine That a Proffered Affidavit
of Merit Fails to Comply With MCL 600.2912d
MCL 600.2912e provides, in part, that "[i]n 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." (Emphasis added.) MCR 2.108(A)(6), which
addresses the time for answering a complaint in a medical malpractice lawsuit, provides in
pertinent part that "[i]n an action alleging malpractice . . . the defendant must serve and file an
answer within 21 days after being served with . . . the affidavit . . . required by MCL
600.2912d."1 (Emphasis added.) At issue in this case is whether a defendant is permitted to
unilaterally determine whether an affidavit of merit fails to satisfy the requirements of MCL
600.2912d such that defendant need not answer the complaint.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The best
measure of intent is the words used by the Legislature. Lansing Mayor v Pub Service Comm,
470 Mich 154, 164; 680 NW2d 840 (2004). "Where the language is unambiguous, 'we presume
that the Legislature intended the meaning clearly expressed—no further judicial construction is
required or permitted, and the statute must be enforced as written.'" Pohutski v City of Allen
Park, 465 Mich 675, 683; 641 NW2d 219 (2002), quoting DiBenedetto v West Shore Hosp, 461
Mich 394, 402; 605 NW2d 300 (2000); see also Nastal v Henderson & Assoc Investigations, Inc,
471 Mich 712, 720; 691 NW2d 1 (2005). A provision of law is ambiguous when it
irreconcilably conflicts with another provision or is equally susceptible to more than a single
meaning. Lansing Mayor, supra at 166. "Where the language of a statute is of doubtful
meaning, a court must look to the object of the statute in light of the harm it is designed to
remedy, and strive to apply a reasonable construction that will best accomplish the Legislature's
purpose." Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513
NW2d 799 (1994). Moreover, the Legislature is presumed to have knowledge of existing laws
on the same subject and is presumed to have considered the effect of new laws on all existing
laws. Walen v Dep't of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). These same
rules of construction apply to the interpretation of court rules. In re KH, 469 Mich 621, 628; 677
NW2d 800 (2004).
Applying these principles of statutory construction, I conclude, contrary to defendant's
argument, that the use of the phrase "in compliance with MCL 600.2912d" in MCL 600.2912e
1
MCR 2.108(A)(6) is antiquated in that it refers to the filing of security for costs required by
MCL 600.2912d. The option to file security for costs was removed from MCL 600.2912d in
1993. 1993 PA 78. However, MCR 2.108(A)(6) was not amended to conform to the revised
statute. See White v Busuito, 230 Mich App 71, 76 n 5; 583 NW2d 499 (1998).
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and the phrase "required by MCL 600.2912d" in MCR 2.108(A)(6) do not authorize a defendant
to unilaterally determine whether plaintiff 's affidavit of merit satisfies the detailed requirements
of MCL 600.2912d. Rather, these phrases merely identify the type of affidavit that, if filed with
the complaint, brings about a defendant's obligation to answer or otherwise file a responsive
pleading to the complaint. This is not to say that a plaintiff may pursue a medical malpractice
action with a defective affidavit of merit. A defendant may challenge a statutorily defective
affidavit by responsive pleading, motion, or assertion of an affirmative defense. A defendant
may not, however, ignore a complaint, allow a default judgment to be taken, and later attack the
judgment on the basis of a defective affidavit.
We must presume that the Legislature was aware of established court procedure at the
time it enacted this legislation. It is exclusively the province of the courts to determine the
sufficiency of pleadings, the admissibility of evidence, and the efficient administration of justice
in the courts. Nothing in MCL 600.2912d suggests that the Legislature intended to take this
function away from the trial court and place it in the hands of the defendant.
This interpretation of MCL 600.2912e and MCR 2.108(A)(6) is consistent with other
provisions of the Revised Judicature Act that address medical malpractice actions. MCL
600.2912c(1) provides, in pertinent part:
In an action alleging medical malpractice, a party named as a defendant in
the action may, instead of answering or otherwise pleading, file with the court an
affidavit certifying that he or she was not involved, either directly or indirectly, in
the occurrence alleged in the action. [Emphasis added.]
Thus, in limited situations, the Legislature expressly granted to medical malpractice defendants
the unilateral authority to avoid answering or otherwise filing a responsive pleading to a medical
malpractice complaint. Had the Legislature intended to allow medical malpractice defendants to
unilaterally determine whether an affidavit of merit failed to comply with the provisions of MCL
600.2912d so as to relieve the defendant of the obligation to file an answer or other responsive
pleading, it would have expressly granted such authority. The omission of a provision in one
part of a statute that is included in another part should be construed as intentional. Farrington v
Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993); Polkton Twp v Pellegrom, 265
Mich App 88, 103; 693 NW2d 170 (2005).
II. The Trial Court Improperly Reinstated the Default Against Defendant
Defendant moved to set aside the default on December 10, 2001. Under MCR
2.603(D)(1), "[a] motion to set aside a default . . . shall be granted only if good cause is shown
and an affidavit of facts showing a meritorious defense is filed." The good cause and meritorious
defense elements of a motion must be considered separately. Zaiter v Riverfront Complex, Ltd,
463 Mich 544, 553 n 9; 620 NW2d 646 (2001). In regard to the good cause requirement,
defendant proffered an affidavit from his employee, Mona Wilson, in which she stated that she
personally faxed to the insurance company the summons and complaint. She also stated that
"my fax machine does not print a verification or confirmation unless there is a communication
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problem and I did not receive any verification that the faxed transmittal had a communication
problem and was not received by the ProNational Insurance Company." Further, Wilson
affirmed that her "writing does appear on the top of the Summons as attached to my affidavit, . . .
stating, 'faxed September 19th ProNational'" and that she made this notation immediately after
she faxed the documents.
In regard to the affidavit of meritorious defense requirement, defendant proffered an
affidavit identifying the factual basis of his defense. Defendant's affidavit, in general, averred
that he did not breach the applicable standard of care and that the cause of plaintiff 's injury
stemmed from past chronic infections resulting from two previous root canals not performed by
defendant.
The trial court granted defendant's motion to set aside the default. The trial court found
the time frame in which defendant failed to answer was "relatively short," and that the "failed fax
transmittal" was in part responsible for the delay and constituted a "reasonable excuse."
After defendant filed his motion for summary disposition based on plaintiff 's defective
affidavit of merit, plaintiff filed a motion requesting the trial court reconsider its order setting
aside the default. Trial courts have discretion to reconsider previous rulings. MCR 2.119(F)(3)
provides:
Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the
parties have been misled and show that a different disposition of the motion must
result from correction of the error.
After conducting a hearing, the trial court issued a written opinion and order denying
defendant's motion for summary disposition and granting plaintiff 's motion to reinstate the
default, finding that "two factors were not argued or made known to the Court at the time of the
motion to set aside the default and the Court was therefore misled at the time of the initial ruling
on this matter."
The trial court, in addressing the first factor, stated that
it appears from the discovery that has been conducted by way of phone records
and the testimony of Defendant's office manager, Mona Wilson, that it is
questionable whether a good faith effort to transmit the summons and complaint
by fax as alleged at the original motion to set aside the default is accurate. The
testimony of Mona Wilson is that she did make this attempt, however, the phone
records do not establish that any long distance call was made or billed to her
phone system on the date of the alleged fax. This evidence removes the
possibility that a long distance call was misdialed and the information faxed to the
wrong number. The phone records established that there was no long distance
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call on the relevant date. It appears that a phone connection was not made on that
date to a long distance number that would have allowed the machine to process
the fax and these facts contradict the affidavit Mona Wilson.
The trial court stated that it found "questionable," whether there was "a good faith effort
to transmit the summons and complaint by fax as alleged at the original motion to set aside the
default . . . ." The trial court further noted that the absence of any long distance call on the date
of the alleged fax, in short, contradicts the affidavit of Mona Wilson. The obvious implication of
these findings, considered along with the conclusion that it was misled at the time of the initial
ruling on this matter, is that defendant fabricated his claim that the failure to transmit the
summons and complaint to his insurer was the product of excusable clerical error. This Court
has held that a motion for reconsideration of setting aside a default is properly granted when
evidence is presented that "seriously call[s] into question" the factual allegations contained in the
affidavit supplied in support of the motion to set aside the default. Michigan Bank-Midwest v D
J Reynaert, Inc, 165 Mich App 630, 646; 419 NW2d 439 (1988).
However, where there are allegations indicating that fraud has been committed on the
court, it is generally an abuse of discretion for the court to decide the motion without first
conducting an evidentiary hearing into the allegations. Rapaport v Rapaport, 185 Mich App 12,
16; 460 NW2d 588 (1990); St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210,
214-215, 238 NW2d 806 (1975); but see Michigan Bank-Midwest, supra at 643 (no evidentiary
hearing is required where a party alleged to have committed fraud is not entitled to relief on
certain alternative grounds). Here, while there may be evidence suggesting that defendant
fabricated his claim, the absence of a long distance phone record on the day the fax was
attempted does not necessarily defeat defendant's assertion that the fax was not received because
of clerical error. As mentioned, Wilson's affidavit explains that she "did not receive any
verification that the faxed transmittal had a communication problem and was not received by the
ProNational Insurance Company." The absence of a long distance phone record is not
inconsistent with this assertion, and, indeed, may even explain how she "did not receive any
verification that the faxed transmittal had a communication problem . . . ." That is, if there were
never a phone connection, (for any number of reasons) there may not be any failed
communication to verify, which is consistent with Wilson's averment that she believed that the
fax was received. Thus, I conclude that the evidence is unclear in regard to whether defendant
fabricated his claim that the failure to transmit the summons and complaint to his insurer was the
product of excusable clerical error. Accordingly, I would vacate the order of default and remand
for an evidentiary hearing on the matter.
The trial court also addressed a second basis for granting plaintiff 's motion to reconsider
setting aside the default. The trial court noted that defendant had argued in his brief in support of
setting aside the default that Michigan favors meritorious litigation and that manifest injustice
would result if defendant were not able to present proof to the trier of fact. The trial court held:
These arguments were made by the Defendant and relied upon by the
Court in its assessment of its ruling in setting aside the default. What has
unfolded subsequent to that ruling, however, is the Defendant's argument that the
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summons and complaint must now be dismissed with prejudice because the
Plaintiff 's Affidavit of Merit was signed by an expert in the field of endodontics
concerning this particular root canal which gives rise to this action rather than
someone in the field of general dentistry.
Further, the trial court stated:
It is patently unfair to allow the Defendant to successfully assert in his
request to set aside the default that all litigants, whenever possible, should have
their day in court knowing that upon granting this relief, Defendant will then be
entitled to summary disposition based on an affidavit being executed by a dentist
specializing in endodontics rather than general dentistry.
I conclude that the trial court abused its discretion in reinstating the default on this
ground. The court rule addressing the setting aside of a default has only two elements. The
defaulted party must show good cause for not timely pursuing the defense and "an affidavit of
facts showing a meritorious defense." MCR 2.603(D)(1). Nothing in the court rule precludes a
once-defaulted party from pursuing a defense other than the defense pleaded in the affidavit of
meritorious defense under MCR 2.603(D). The requirement of an affidavit of meritorious
defense essentially prevents a defaulted party from merely denying the plaintiff 's allegations in a
conclusory manner. See Miller v Rondeau, 174 Mich App 483, 488; 436 NW2d 393 (1988). To
the extent that the trial court reinstated the default merely because it did not approve of defendant
pursuing a statute of limitations defense, the trial court erred.
III. Conclusion
Defendant lacked authority to ignore plaintiff 's complaint, notwithstanding the defective
affidavit of merit. I would vacate the default and the ensuing default judgment, and remand for
an evidentiary hearing on the issue whether defendant's claim of clerical error to establish good
cause for the failure to timely or otherwise respond to the complaint was fraudulent. To the
extent the court concludes that defendant did not commit a fraud on the court, the trial court
should rule on defendant's motion for summary disposition.2
/s/ Brian K. Zahra
2
I express no opinion on the merit of defendant's motion for summary disposition based on the
applicable statute of limitations.
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