ROBERT G THOMPSON V STATE APPELLATE DEFENDER
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT G. THOMPSON,
UNPUBLISHED
January 17, 1997
Plaintiff-Appellant,
v
No. 188385
Wayne County
LC No. 95-509745-NM
STATE APPELLATE DEFENDER’S OFFICE,
Defendant-Appellee.
Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber,* JJ.
PER CURIAM.
In this legal malpractice action, plaintiff appeals as of right a clerk’s order that dismissed this
case pursuant to MCR 2.102(E) on the ground that defendants were not served with process before the
expiration of the summons and that defendants had not submitted to the court’s jurisdiction. We affirm.
Specifically, plaintiff argues that the trial court erred in denying his motion to set aside the
dismissal. We disagree. MCR 2.102(F) provides, in relevant part, as follows:
A court may set aside the dismissal of the action as to a defendant under subrule
(E) only . . . when all of the following conditions are met:
(1) within the time provided in subrule (D), service of process was in fact made
on the dismissed defendant, or the defendant submitted to the court’s jurisdiction;
(2) proof of service of process was filed or the failure to file is excused for
good cause shown;
(3) the motion to set aside the dismissal was filed within 28 days after notice of
the order of dismissal was given or, if notice of dismissal was not given, the motion was
promptly filed after the plaintiff learned of the dismissal.
* Circuit judge, sitting on the Court of Appeals by assignment.
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In this case, the trial court denied plaintiff’s motion to set aside the dismissal for the following
reasons:
It is not within a trial court’s discretion to grant reinstatement of an action under
subrule (F) [of MCR 2.102] if one or more of the requirements are not met. Durfy v
Kellogg, 193 Mich App 141, 145; [483 NW2d 664 (1992)].
Plaintiff contends that all of the conditions stated above [in MCR 2.102(F)]
have been met, therefore the dismissal should be set aside under the court rule. Plaintiff
filed this motion within 28 days after notice of the order of dismissal was given in
compliance with the third requirements, however, the first and second requirements
have not been met. Plaintiff claims to have served both defendants [the individual
attorneys, Mardi Crawford and James Neuhard] via certified mail, return receipt
requested, but neither defendant has signed a return receipt to prove they were served.
Under MCR 2.105(A)(2) service is made when the defendant acknowledges receipt of
the mail. A copy of the return receipt signed by the defendant must be attached to
proof showing service under subrule (A)(2).
The only evidence presented by plaintiff to show that he served the defendants
is a cash receipt showing that he paid for certified mail delivery to both defendants with
return receipt requested and a return receipt addressed to Mardi Crawford which was
returned on 7/19/95 unclaimed and unsigned. Plaintiff likewise never received a return
receipt signed by James Neuhard, therefore service was not effectuated on either
defendant prior to the expiration of the summons.
Plaintiff also claims that the defendants submitted to the Court’s jurisdiction by
filing a limited appearance in a prior matter under Case No. 95-509811-NM. This
Court is not concerned with events pertaining to prior lawsuits. Defendant have never
filed an appearance in this Court under Case No. 95-509745-NM, therefore
defendants have not submitted to this Court’s jurisdiction. Since defendants were never
served and have not submitted to this Court’s jurisdiction, this Court finds that the first
requirement of MCR 2.102(F) has not been met.
Plaintiff does not contend that defendants were, in fact, served. Rather, plaintiff concedes that
he served defendants by mail and that defendants did not acknowledge receipt of the mail as required
by MCR 2.105(A)(2). Thus, we find no error with the trial court’s conclusion that “service was not
effectuated on either defendant prior to the expiration of the summons.” MCR 2.102(F)(1).
However, plaintiff argues that defendants submitted to the court’s jurisdiction and, therefore,
waived any defense based upon lack of service. As explained in Penny v ABA Pharmaceutical Co
(On Remand), 203 Mich App 178; 511 NW2d 896 (1993):
A party who enters a general appearance and contests a cause of action on the
merits submits to the court’s jurisdiction and waives service of process objections. In
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re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985). Generally, any action on
the part of a defendant that recognizes the pending proceedings with the exception of
objecting to the court’s jurisdiction, will constitute a general appearance. Only two
requirements must be met to render an act adequate to support the inference that there
is an appearance: (1) knowledge of the pending proceedings and (2) an intent to
appear. Ragnone v Wirsing, 141 Mich App 263, 265; 367 NW2d 369 (1985). A
party that submits to the court’s jurisdiction may not be dismissed for not having
received service of process. MCR 2.102(E)(2). [Id. at 181-182.]
In the lower court, this case was assigned case number 95-509745-NM (case 745). In
addition, plaintiff also instituted a separate legal malpractice action below against defendants by filing
another complaint similar to the complaint filed in this case. This separate action was assigned case
number 95-509811-NM (case 811). Plaintiff and defendants state that defendants’ attorney obtained a
copy of the complaint filed in this case for the purpose of addressing issues raised pursuant to
defendants’ motion for summary disposition in case 811. Thus, we assume for the purpose of this
analysis that defendants had knowledge of the pending proceedings in this case.
However, as found by the trial court, there is no indication in the record that defendants ever
filed an appearance or any pleadings in this case. Nor is there any indication that defendants otherwise
engaged in any out-of-court conduct of the type that this Court has previously found sufficient to
constitute an intent to appear. See, e.g., Penny, supra at 182; Ragnone, supra at 265-266; Slis,
supra; Deeb v Berri, 118 Mich App 556; 325 NW2d 493 (1982). Defendant’ attorney did appear in
case 811, and both case 745 and case 811 are similar legal malpractice cases. However, plaintiff has
failed to cite any authority for his proposition that the appearance of a party’s attorney in one case
constitutes an appearance in another, separate case. We are unable to infer from defendants’ attorney’s
appearance in case 811 an intent by defendants to appear in this case. Thus, we find no error in the trial
court’s conclusion that defendants did not submit to the court’s jurisdiction. Accordingly, the trial court
did not err in denying plaintiff’s motion where the conditions specified in MCR 2.102(F)(1) for setting
aside a dismissal were not satisfied.
To the extent that defendant raises other grounds for his argument that the trial court erred in
denying his motion to set aside the dismissal, we decline to address these grounds where they were not
raised before and decided by the trial court below. Bowers v Bowers, 216 Mich App 491, 495; 549
NW2d 592 (1996).
Affirmed.
/s/ Michael R. Smolenski
/s/ Michael J. Kelly
/s/ John R. Weber
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