Adams v. Perry Furniture Co.

• Decision Date: 19 January 1993
• Docket Number: Docket No. 129210
• Citation: 497 N.W.2d 514,198 Mich.App. 1
• Parties: , Prod.Liab.Rep.(CCH)P 13,457 Yvonne ADAMS, Personal Representative of the Estates of Shameekah Adams, deceased, Yolanda Adams, deceased, Lachelle Adams, deceased, and Clarence Williams, Jr., deceased, Plaintiff- Appellant, v. PERRY FURNITURE COMPANY, a Michigan corporation, and BIC Corporation, Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 514

497 N.W.2d 514

198 Mich.App. 1, Prod.Liab.Rep.(CCH)P 13,457

Yvonne ADAMS, Personal Representative of the Estates of Shameekah Adams, deceased, Yolanda Adams deceased, Lachelle Adams, deceased, and Clarence Williams, Jr. deceased Plaintiff- Appellant, v. PERRY FURNITURE COMPANY, a Michigan corporation, and BIC Corporation, Defendants-Appellees. (On Remand)

Docket No. 129210.

Court of Appeals of Michigan.

Submitted June 24, 1992, at Lansing.

Decided Jan. 19, 1993, at 9:10 a.m.

Released for Publication April 12, 1993.

Michael T. Materna, Southfield, (Donald M. Fulkerson, Westland, of counsel), for Yvonne Adams.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Rosalind Rochkind, Roger A. Smith, and Nancy J. Bourget, Detroit, for Perry Furniture Co.

Vandeveer Garzia by Robert D. Brignall, Detroit, for Bic Corp.

Before HOLBROOK, P.J., and WEAVER and McDONALD, JJ.

ON REMAND

HOLBROOK, Presiding Judge.

In this products liability case, the plaintiff appeals as of right from separate Oakland Circuit Court orders dismissing her case against the defendants. We affirm the order granting defendant Bic Corporation summary disposition, but vacate the default judgment in favor of defendant Perry Furniture Company and remand.

Plaintiff is the personal representative of the estates of four minor children who died in a fire in the family home. Plaintiff's complaint alleged that the decedents were asphyxiated and died as a result of inhaling the fumes of a burning mattress distributed by Perry. Plaintiff alleged negligence, breach of warranty, and strict liability against Perry. Plaintiff also alleged breach of warranty, negligent design, and failure to warn by Bic with regard to the dangerousness of the disposable butane lighter that allegedly caused the fire.

Bic moved for summary disposition, claiming that it owed no duty to the four children. The circuit court agreed and granted the motion. Pursuant to MCR 2.604(A), the court certified its order granting Bic's motion as a final order. Plaintiff then filed papers claiming an appeal from that judgment. However, this Court did not accept the plaintiff's claim of appeal for filing because the plaintiff failed to file other documents as required by MCR 7.204(C). This Court did not issue an order of dismissal, but returned to the plaintiff her claim of appeal and entry fee.

Perry moved for a default judgment in the circuit court as a sanction for the plaintiff's failure to comply with an earlier order to produce a witness for discovery. The circuit court entered a default judgment against the plaintiff on December 26, 1989. Plaintiff filed her motion to set aside the default judgment on January 8, 1990, but the court entered an order denying her motion on February 5, 1990. On February 12, 1990, the plaintiff filed her motion for reconsideration of the motion to set aside the default judgment. On May 3, 1990, the circuit court denied the plaintiff's motion for reconsideration. Plaintiff filed her claim of appeal in this Court on May 23, 1990.

Plaintiff filed this claim of appeal challenging the order granting Bic summary disposition and the three orders pertaining to Perry: the default judgment, the order denying the plaintiff's motion to set aside the default judgment, and the order denying the plaintiff's motion for reconsideration of the motion to set aside the default judgment. Both defendants filed in this Court motions to dismiss the plaintiff's claim of appeal. This Court denied the motions. Our Supreme Court remanded for plenary consideration of the jurisdictional issues raised in both motions. 437 Mich 1004, 469 N.W.2d 305 (1991).

I

We first consider Perry's argument that the plaintiff's claim of appeal should be dismissed. Maintaining that the default judgment was the final judgment, Perry argues the plaintiff's claim of appeal is untimely because she failed to file her claim of appeal within twenty-one days after entry of either the default judgment or the order denying her motion to set aside the default judgment. Perry purports that the plaintiff's motion for reconsideration did not provide additional time for filing her claim of appeal.

This Court has jurisdiction of an appeal as of right from a circuit court final judgment or final order. MCR 7.203(A)(1); McCarthy & Associates, Inc. v. Washburn, 194 Mich.App. 676, 678, 488 N.W.2d 785 (1992). An order denying a motion for reconsideration is not a final order from which one may appeal as of right, but it may serve as a triggering event for calculating the time for filing a claim of appeal. Nye v. Gable, Nelson & Murphy, 169 Mich.App. 411, 415, 425 N.W.2d 797 (1988). Our Supreme Court has indicated that an order denying a motion to set aside a default judgment is appealable as of right to this Court. General Electric Credit Corp. v. Northcoast Marine, Inc., 402 Mich. 297, 262 N.W.2d 660 (1978). Consequently, the final order appealed from in the present case is the circuit court's order denying the plaintiff's motion to set aside the default judgment. ¹

The time requirements for filing an appeal as of right are set forth in the Michigan Court Rules. MCR 7.204 provides in pertinent part:

(A) Time Requirements. The time limit for an appeal of right is jurisdictional. The provisions of MCR 1.108 regarding computation of time apply.

(1) An appeal of right in a civil action must be taken within

(a) 21 days after entry of the judgment or order appealed from;

(b) 21 days after the entry of an order denying a motion for new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief, if the motion was filed within the initial 21-day appeal period or within further time the trial court may have allowed during that 21-day period; or

(c) another time provided by law.

Plaintiff's claim of appeal obviously is untimely under MCR 7.204(A)(1)(a) because she did not file it within twenty-one days after February 5, 1990, when the circuit court entered its order denying her motion to set aside the default judgment. However, it is timely under A(1)(b) because she filed it within twenty-one days after the entry of the circuit court's May 3 order denying her motion for reconsideration. The concluding paragraph of MCR 7.204(A) provides:

A motion for rehearing or reconsideration of a motion mentioned in subrules (A)(1)(b) or (A)(2)(d) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21- or 42-day period.

In Gavulic v. Boyer, 195 Mich.App. 20, 489 N.W.2d 124 (1992), the defendant appealed as of right from an order denying his motion to set aside a default judgment. Within twenty-one days of that order, the defendant filed a motion for reconsideration. The trial court entered an order denying the defendant's motion for reconsideration. The defendant in Gavulic then filed his claim of appeal within twenty-one days after the last order. On appeal, the plaintiff asserted that this Court's review was limited to a review of the trial court's exercise of discretion in denying the defendant's motion for reconsideration. However, this Court held that appellate review of the original order was appropriate because the defendant's motion for reconsideration was filed within the original twenty-one-day period and his claim of appeal was timely. Id., at pp. 23-24, 489 N.W.2d 124.

Similarly, the plaintiff in the present case filed her motion for reconsideration within twenty-one days after the entry of the order denying her motion to set aside the default judgment. Plaintiff timely filed her claim of appeal within twenty-one days after the entry of the order denying her motion for reconsideration. Nye, supra. Plaintiff also complied with MCR 2.119(F) when she filed her motion for reconsideration. We conclude that the plaintiff timely filed her claim of appeal and again deny Perry's motion to dismiss.

II

Next, we consider Bic's argument that the plaintiff's claim of appeal from the order of summary disposition should be dismissed. Bic contends that the plaintiff has already had her one appeal as of right and abandoned it when she failed to correct its defects, timely move for reinstatement, or appeal in the Supreme Court. On the other hand, the plaintiff argues that her earlier claim of appeal was not from a final order. Plaintiff also argues that the administrative rejection of the earlier claim of appeal did not constitute an adjudication on the merits.

We turn to the court rules to resolve this issue. This Court had jurisdiction of the plaintiff's original claim of appeal when she submitted it with the entry fee. MCR 7.204(B). However, claims of appeal need not be accepted for filing by the clerk of this Court until all required documents have been filed and the requisite fees have been paid. MCR 7.201(B). In this case, the plaintiff's original claim of appeal was not filed by the clerk of this Court because the plaintiff failed to submit other documents required by MCR 7.204(C). As defined by MCR 7.202(5), "filing" means the delivery of a document to a court clerk and the receipt and acceptance of the document by the clerk with the intent to enter it in the record of the Court. We also note that the plaintiff's original claim of appeal was neither assigned to a panel of this Court nor scheduled for oral argument. Consequently, the plaintiff's claim of appeal filed on May 23, 1990, is her first claim of appeal with respect to the summary disposition order concerning her claim against Bic.

Having determined that the May 23, 1990, claim of appeal is the plaintiff's claim of appeal with respect to the summary disposition order, we must analyze whether the claim was timely filed. The claim of appeal regarding Bic is not timely under MCR 7.204(A)(1) because the plaintiff failed to file it within twenty-one days after the circuit court entered its certified final order granting defendant Bic...