Apsey v. Memorial Hosp.
| Decision Date | 01 May 2007 |
| Docket Number | Docket No. 129134. |
| Citation | 730 N.W.2d 695,477 Mich. 120 |
| Parties | Sue H. APSEY and Robert Apsey, Jr., Plaintiff-Appellees/Cross-Appellants, v. MEMORIAL HOSPITAL, doing business as Memorial Healthcare Center, Defendant. and Russell H. Tobe, D.O., James H. Deering, D.O., James H. Deering, D.O., P.C., and Shiawassee Radiology Consultants, P.C., Defendants-Appellants/Cross-Appellees. |
| Court | Michigan Supreme Court |
Mark Granzotto, P.C. (by Mark Granzotto), and Jeffrey S. Zilinski, Royal Oak, Burton, for Sue H. Apsey and Robert Apsey, Jr.
Cline, Cline, Griffin (by Glenn M. Simmington and Jose T. Brown), Flint, for Memorial Hospital.
Willingham & Cote', P.C. (by Michael W. Stephenson and Matthew K. Payok), and Hackney, Grover, Hoover & Bean (by Randy J. Hackney and Loretta B. Subhi), East Lansing, East Lansing, for Russell H. Tobe, D.O.; James H. Deering, D.O.; James H. Deering, D.O., P.C.; and Shiawassee Radiology Consultants, P.C.
Maddin, Hauser, Wartell, Roth & Heller, P.C. (by Mark H. Fink), and Cooper & Walinsky (by Cary R. Cooper), Southfield, Toledo, Ohio, for amici curiae Michigan Defense Trial Counsel.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Heather S. Meingast and Robert Welliver, Assistant Attorneys General, Lansing, for the Department of Community Health.
Charfoos & Christensen, P.C. (by David R. Parker), Detroit, for State Bar of Michigan, Negligence Section and State Bar of Michigan Elder Law Section.
Shermeta & Adams, P.C. (by Barbara L. Adams), and Charfoos & Christensen, P.C. (by David R. Parker), Rochester Hills, Detroit, for Michigan Creditors Bar Association.
Linda M. Galante, Grosse Pointe Park, for Michigan Trial Lawyers Association.
Kerr, Russell and Weber, P.C. (by Joanne Geha Swanson, Daniel J. Schulte, and Michael A. Sneyd), Detroit, for Michigan State Medical Society.
The Googasian Firm, P.C. (by Dean M. Googasian), and Timothy Reiniger and Michael Closen, Bloomfield Hills, Chatsworth, California, Chatsworth, California, for National Notary Association.
The Googasian Firm, P.C. (by George A. Googasian and Dean M. Googasian), Bloomfield Hills, for State Bar of Michigan.
Olsman, Mueller & James, P.C. (by Jules B. Olsman and Phyllis A. Figiel), Berkley, for Citizens for Better Care.
This case presents the question of what authentication is necessary for out-of-state affidavits in Michigan. The parties ask us to determine whether MCL 600.2102(4) of the Revised Judicature Act (RJA) conflicts with the Uniform Recognition of Acknowledgements Act (URAA), MCL 565.261 et seq., and to discern the meaning of MCL 565.268 and its relation to MCL 600.2102(4). We find no conflict between the URAA and MCL 600.2102(4). The Legislature intended the URAA to serve as an alternative to MCL 600.2102(4) for authenticating out-of-state affidavits.
The Court of Appeals erred in concluding that MCL 600.2102(4) controlled because it is more specific. Therefore, it erroneously found that the signature of a notary public on an affidavit taken out of state must "be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court." MCL 600.2102(4). The Court of Appeals failed to give adequate weight and consideration to the language of MCL 565.268 that makes the URAA an additional method of attestation. Apsey v. Mem Hosp (On Reconsideration), 266 Mich.App. 666, 702 N.W.2d 870 (2005). We reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
Sue Apsey went to Memorial Healthcare Center for an exploratory laparotomy, which resulted in the removal of a large ovarian cyst. Medical complications followed this procedure. Plaintiffs allege that various acts of medical malpractice caused her to become septic, necessitating several follow-up surgeries.
Plaintiffs' affidavit of merit was prepared in Pennsylvania, and the notary public who signed it came from that state. A normal notarial seal appears on the document, but no other certification accompanied the seal. Plaintiffs later provided further certification, but not until after the statutory period of limitations had run on their medical malpractice cause of action.
Defendants moved for summary disposition of plaintiffs' claims.1 The trial court granted the motion. It found that plaintiffs' failure to provide further certification as required by MCL 600.2102(4) rendered the out-of-state notarization insufficient. As a result, it ruled that the affidavit was a nullity. Without the affidavit, plaintiffs' complaint was not complete, and their cause of action failed for never having been properly commenced.
Plaintiffs moved for reconsideration, arguing that the affidavit was sufficient under MCL 565.262, but the trial court denied reconsideration. Although it did not give its reasoning, the court stated that compliance with MCL 565.262 would not have changed its decision.
On appeal, the Court of Appeals issued an opinion in April 2005. It stated that, if it were basing its decision solely on the URAA, the affidavit in this case would be valid. But it found that MCL 600.2102(4) changed this. It found significance in the fact that MCL 600.2192 appears in the RJA, which deals with material presented to the courts. It reasoned that, on the other hand, the URAA appears among the statutes governing the conveyance of real property. It concluded that the URAA's emphasis is not on documents submitted to the courts.
The Court of Appeals also focused on the final sentence in MCL 565.268: "Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state." It reasoned that this sentence indicated that the URAA did not diminish the more formal and specific requirements of MCL 600.2102(4). And it found that these more formal requirements controlled when the affidavit is to be officially received and considered by the judiciary. Given this, the Court of Appeals affirmed the trial court's dismissal of the case in a published opinion per curiam of the Court of Appeals, issued April 19, 2005, 2005 WL 900600, (Docket No. 251110).
On June 2, 2005,2 the Court of Appeals granted reconsideration and vacated its opinion. On June 9, 2005, it issued its published opinion on reconsideration. In a split decision, a majority of the Court of Appeals reaffirmed its past decision, issuing essentially the same opinion. But it decided to give the decision only prospective application. It found that it would be fundamentally unfair to dismiss plaintiffs' case because of plaintiffs' reliance on the URAA. It determined that the interests of justice would best be served by allowing plaintiffs' claim to proceed. Apsey, 266 Mich.App. at 681-682, 702 N.W.2d 870.
Judge Mark Cavanagh dissented. He argued that the URAA provided an alternative method of proving that the notary actually notarized the document. He concluded that the URAA was a response to advances in technology and that the Legislature intended both it and MCL 600.2102 to provide legal methods of authenticating out-of-state affidavits. Id. at 685-686, 702 N.W.2d 870 (Cavanagh, J., dissenting).
Defendants sought leave to appeal in this Court, and plaintiffs sought leave to cross-appeal. This Court directed the clerk to schedule oral argument on whether to grant the applications or take other peremptory action pursuant to MCR 7.302(G)(1). 474 Mich. 1135, 716 N.W.2d 558 (2006).
Issues of statutory interpretation are questions of law that this Court reviews de novo. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). The fundamental rule and primary goal of statutory construction is to effectuate the Legislature's intent. Casco Twp. v. Secretary of State, 472 Mich. 566, 571, 701 N.W.2d 102 (2005). To accomplish this task, we start by reviewing the text of the statute, and, if it is unambiguous, we will enforce the statute as written because the Legislature is presumed to have intended the meaning expressed. Id. Whenever possible, every word of a statute should be given meaning. And no word should be treated as surplusage or made nugatory. People v. Warren, 462 Mich. 415, 429 n. 24, 615 N.W.2d 691 (2000).
The URAA and MCL 600.2102(4) require different certifications for out-of-state affidavits. MCL 600.2102 provides, in part:
In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows:
* * *
(4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court. [Emphasis added.]
MCL 565.262(a) defines "notarial acts" under the URAA. It provides, in part:
"Notarial acts" means acts that the laws of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of...
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