Barclay v. Crown Bldg. & Dev., Inc.

• Decision Date: 19 September 2000
• Docket Number: Docket No. 208348.
• Citation: 241 Mich. App. 639,617 N.W.2d 373
• Parties: John M. BARCLAY and Gaye Snell, Plaintiffs-Appellees, v. CROWN BUILDING AND DEVELOPMENT, INC., a Michigan corporation, and Thomas H. Christenson, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

617 N.W.2d 373

241 Mich. App. 639

John M. BARCLAY and Gaye Snell, Plaintiffs-Appellees, v. CROWN BUILDING AND DEVELOPMENT, INC., a Michigan corporation, and Thomas H. Christenson, Defendants-Appellants.

Docket No. 208348.

Court of Appeals of Michigan.

Submitted December 7, 1999, at Detroit.

Decided July 11, 2000, at 9:05 a.m.

Released for Publication September 19, 2000.

Frank, Stefani and Haron (by Patrick C. Hall), Troy, for the plaintiffs.

Robert A. Kuhr, Grosse Pointe Farms, for the defendants.

Before WHITE, P.J., and SAWYER and RICHARD ALLEN GRIFFIN, JJ.

PER CURIAM.

Defendants appeal as of right, challenging the circuit court's entry of a default judgment against defendants and the court's denial of defendants' motion to set aside the default judgment. We affirm.

I

Plaintiffs John M. Barclay and Gaye Snell filed this action alleging slander of title, M.C.L. § 565.108; MSA 26.1278, and to quiet title, on June 17, 1997.¹ Defendant Thomas H. Christenson is the sole shareholder and president of defendant Crown Building and Development, Inc. Plaintiffs hired Melvin McCullough, a professional process server/private detective, to serve the summons and complaint. McCullough executed an affidavit of service on July 14, averring that he served Christenson personally on July 1. Defendants failed to file an answer, and a default was entered on July 25. On August 5, defendants filed a motion to set aside the default, asserting that the trial court did not have personal jurisdiction over them because plaintiffs failed to effect personal service of the summons and complaint. Defendants did not file an affidavit of meritorious defense. The court held an evidentiary hearing, denied the motion to set aside the default, and granted plaintiffs' request for default judgment. Defendants objected to the order plaintiffs submitted under MCR 2.602(B)(3), but did not appear at the hearing on the motion for entry of the judgment. The court entered the default judgment on October 15. Defendants then filed a motion to set aside the default judgment, this time including an affidavit alleging a meritorious defense and good cause why the complaint was not answered. The court denied the motion, and this appeal ensued.

II

Defendants first argue that the circuit court did not have personal jurisdiction over them because the summons and complaint were not properly served, in that the process server failed to effect in-hand service on Christenson. Defendants further contend that because valid service was never achieved, their original motion to set aside the default should have been granted. We disagree.

The construction and interpretation of court rules is a question of law that we review de novo, In re Gosnell, 234 Mich.App. 326, 333, 594 N.W.2d 90 (1999). We review the circuit court's decision to enter a default for abuse of discretion. Sturak v. Ozomaro, 238 Mich.App. 549, 569, 606 N.W.2d 411 (1999).

A

McCullough filed an affidavit and also testified at the evidentiary hearing. He asserted that he went to the address on the summons and complaint on June 30 and observed a person coming out of the office. He asked the person if he was Christenson and said that he had something for him. The person said he had no time to be bothered with McCullough, got into a white Cadillac,² and drove away. McCullough then went into the adjacent law office and asked about Christenson. He determined that Christenson drove a white Cadillac and that he had just left.

McCullough returned the next day and waited across the street until Christenson arrived. He then drove across the street. As he was approaching Christenson, he dropped the summons and complaint. Christenson said "you better hurry up and pick them up; you don't want them to get dirty." Christenson then began walking much faster. McCullough picked up the summons and complaint and said, "Mr. Christenson, I've got something for you." Christenson replied: "[N]o, no, you must be mistaken. He's overseas and he won't be back for awhile." McCullough then followed Christenson to the door. Christenson entered the building and locked the door as McCullough approached. McCullough then placed the summons and complaint in the door handle and told Christenson through the door that he had been served.

Christenson denied ever having received the summons and complaint, denied having had a confrontation with McCullough in the parking lot, denied ever being within twenty-five feet of McCullough, and stated that he had no recollection of ever having a conversation with McCullough. Plaintiffs' counsel asserted that Christenson came to his office several weeks before the hearing and that he acknowledged that he had had a confrontation with the process server. Christenson denied ever being in the attorney's office. Two employees of the office later submitted affidavits attesting to Christenson's presence at the office on July 16. Plaintiffs' attorney filed the proof of service and McCullough's affidavit with the court, and also mailed a copy of the summons and complaint to defendants, on July 17, the day following the disputed visit to plaintiffs' attorney's office.

The trial court determined that Christenson lied.

B

Defendants maintain that because the summons and complaint were not served on Christenson "in hand," service was improper and the court lacked personal jurisdiction over defendants. We disagree and conclude that service here was adequate.

MCR 2.105 provides in pertinent part:

(A) Individuals. Process may be served on a resident or nonresident individual by

(1) delivering a summons and a copy of the complaint to the defendant personally...

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(J) Jurisdiction; Range of Service; Effect of Improper Service.

(1) Provisions for service of process contained in these rules are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court over a defendant is governed by the United States Constitution and the constitution and laws of the State of Michigan. See M.C.L. § 600.701 et seq.; MSA 27A.701 et seq.

* * *

(3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service. [Emphasis added.]

Commentators have noted that the court rule does not specify what constitutes "delivering a summons and a copy of the complaint to the defendant personally" under MCR 2.105(A)(1). As noted in 1 Gilmore, Michigan Civil Procedure Before Trial (3d ed.), § 9.10, pp. 9-12:

The rule does not attempt to define what constitutes delivering the papers to the defendant personally. Whether this has been accomplished will have to be determined on a case-by-case basis. Circumstances such as a defendant who deliberately avoids service or is unconscious or otherwise incapacitated must be considered in determining whether process has been delivered to the defendant personally.

The requirement to deliver papers to the defendant personally should be interpreted in the context of the essential function of service, which is to give actual notice of the institution of an action. Physically leaving the summons and a copy of the complaint with the defendant in person is the generally contemplated method of personal service of process. (Earlier decisions on this subject should be read with caution because the law has changed materially. The defendant is no longer required to be shown the original papers with the seal of the court.) However, merely laying the documents on the body of a man too sick to understand their meaning is not valid service. People ex rel. Midler v. Judge of the Superior Court, 38 Mich. 310 (1878). Sliding the documents under the door of the person's home is not sufficient for personal service. See People v. Featherstone, 93 Mich.App. 541, 286 N.W.2d 907 (1979) (service of subpoena).

Michigan courts have not decided whether a defendant can avoid service by refusing to accept the proffered papers from a process server after being told of their significance, or whether service is complete if the documents in some way touch the defendant who has refused to accept them. [Emphasis added.]

Similarly, 1 Dean & Longhofer, Michigan Court Rules Practice, p. 118, states, in pertinent part:

MCR 2.105 wisely does not define what "delivering a copy of the complaint to the defendant personally" means, since the variety of situations that can arise will be great and some factors (such as the defendant's attempt to evade process, or ignorance on the defendant's part that what he or she has received is process) may affect the outcome. Nothing in the rule requires that the papers be read to the defendant, but it was held in a case applying the predecessor to MCR 2.105(A)(1) that merely sliding a subpoena under a witness's door did not satisfy service requirements. [Citing Featherstone, supra.]

In determining what constitutes "delivery," the purpose of the service should always be kept in mind. There is little reason, for example, to require a process server to trick an evasive defendant into grasping the papers served. Informing the defendant of the nature of the papers, offering them to the defendant, and leaving them within the defendant's physical control ought to suffice to constitute "delivery." On the other hand, even leaving the papers physically upon the defendant's person may not be enough if the defendant is unconscious or so incapacitated as not to realize the significance of what has been done—a principle established as long ago as 1878 in People ex rel. Midler v. Superior Court, Judgem [supra.] [Emphasis added.]

Thus, the court rule does not define or specify what constitutes "delivering a summons and a copy of the complaint to the defendant personally." Clearly, the...