TYROSH BROWN V FREDERICK A NEUMARK
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STATE OF MICHIGAN
COURT OF APPEALS
TYROSH BROWN,
UNPUBLISHED
February 22, 2011
Plaintiff-Appellant,
V
FREDERICK A. NEUMARK and NEUMARK
LAW OFFICES, P.C.,
No. 295654
Kent Circuit Court
LC No. 09-008117-NM
Defendants-Appellees.
Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ.
PER CURIAM.
Plaintiff claims an appeal from the dismissal without prejudice of his attorney
malpractice case for non-service. We affirm.1
Defendant2 represented plaintiff for purposes of the latter’s claim of appeal from his 2004
criminal convictions of two counts of resisting or obstructing a police officer, MCL 750.81d.
This Court affirmed the convictions. People v Brown, unpublished opinion per curiam of the
Court of Appeals, issued December 15, 2005 (Docket No. 257547). The Supreme Court denied
leave, for which plaintiff had applied in propria persona. People v Brown, 475 Mich 897; 716
1
We first note that, because the dismissal was without prejudice, did not address the merits of
plaintiff’s claim, or otherwise adjudicate the rights of the parties, it is arguable that the order
below was not a final order and plaintiff should not have filed a claim of appeal. MCR 7.202;
MCR 7.203. However, even if the order was not appealable by right, in the interest of judicial
economy, we would nonetheless treat plaintiff's claim of appeal as an application for leave to
appeal, grant leave, and address the substantive issues presented. In re Investigative Subpoena re
Homicide of Lance C Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).
2
In his brief on appeal, defendant Frederick Neumark makes no effort to distinguish himself
from his codefendant, the business entity through which he practiced at the time relevant, and we
likewise see no need to do so.
-1-
NW2d 274 (2006). A federal court denied a petition for a writ of habeas corpus. Brown v Lafler
(ED Mich, August 19, 2009) (No. 07-11685).
Asserting failures of communication, cooperation, and zealous advocacy in the handling
of his criminal claim of appeal, plaintiff filed this legal malpractice action, and a summons was
issued. However, the record includes no indication that there was any attempt to serve process
on defendant. The Kent Circuit Court, through its deputy clerk, issued an order dismissing the
claim without prejudice for non-service, and a notice of dismissal.3 The register of actions gives
no indication that plaintiff ever sought to have the dismissal set aside. Instead, plaintiff claimed
an appeal in this Court.
MCR 2.102(E)(1) directs that, where a defendant is not served within the time required,
the cause of action is deemed dismissed without prejudice in connection with that defendant,
unless the defendant has in fact submitted to the court’s jurisdiction. Subrule (2) directs the clerk
of the court to “enter an order dismissing the action as to a defendant who has not been served
with process or submitted to the court’s jurisdiction,” and subrule (3) directs the clerk to issue
notice of the entry of dismissal. But the latter two subrules also indicate that failures to enter an
order of dismissal, or issue notice thereof, neither delay the onset of the dismissal nor otherwise
weaken its legal effect.
MCR 2.102(F) in turn sets forth procedures for setting aside such a dismissal. Subrule
(1) recognizes actual service as one ground for such action and subrule (2) recognizes the filing
of proof of service, or a showing of good cause for a failure to file, as such grounds. Subrule (3)
provides that such a motion must be filed within 28 days after notice of the order of dismissal
was given, or, where such notice was not provided, promptly upon the plaintiff’s learning of the
dismissal. In this case, there is no indication that plaintiff availed himself of the avenues of
MCR 2.102(F) for setting aside the dismissal.
3
The order, entitled only “Notice of Dismissal,” was contained on the same form as the notice of
dismissal. However, while the title of this document does not clearly state that it is an order of
the court, it does plainly convey the relevant information to plaintiff, and he does not maintain
that he did not recognize this document as dismissing his case.
-2-
On appeal, plaintiff continues to argue that his counsel provided ineffective assistance
during his criminal appeal. However, plaintiff does not challenge the dismissal, or otherwise
offer any ground upon which it might be set aside. He does not assert that service of process was
served on defendant or that defendant otherwise submitted to the court’s jurisdiction. Defendant
continues to assert that he was not served with process and plaintiff has not shown that defendant
stipulated, either below or at this Court, to set aside the dismissal. Accordingly, we find no error
in the order dismissing plaintiff’s claim.4
Affirmed.
/s/ Deborah A. Servitto
/s/ Elizabeth L.Gleicher
/s/ Douglas B. Shapiro
4
Thus, we need not discuss plaintiff’s arguments concerning defendant’s alleged malpractice.
“As a general rule, an appellate court will not decide moot issues.” B P 7 v Bureau of State
Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998).
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