Lindsley v. Burke, Docket No. 120692

• Decision Date: 17 June 1991
• Docket Number: Docket No. 120692
• Citation: 189 Mich.App. 700,474 N.W.2d 158
• Parties: Milo G. LINDSLEY, Plaintiff-Appellee, v. Patrick Francis BURKE, Jr., Defendant-Appellant, and Paul Winthrop Atkinson and Karla Suzanne Atkinson, Defendants. 189 Mich.App. 700, 474 N.W.2d 158
• Court: Court of Appeal of Michigan — District of US

Page 158

474 N.W.2d 158

Milo G. LINDSLEY, Plaintiff-Appellee, v. Patrick Francis BURKE, Jr., Defendant-Appellant and Paul Winthrop Atkinson and Karla Suzanne Atkinson Defendants.

Docket No. 120692.

189 Mich.App. 700, 474 N.W.2d 158

Court of Appeals of Michigan.

Submitted Jan. 16, 1991, at Grand Rapids.

Decided June 17, 1991, at 9:10 a.m.

Released for Publication Sept. 19, 1991.

[189 MICHAPP 700] Sloan, Newton, Stevens & Yokom by Gary C. Newton, Kalamazoo, for the plaintiff-appellee.

Oosterbaan, York, Cooper & Peterson by Wesley L. McPeek, Kalamazoo, for Patrick F. Burke, Jr.

Before DOCTOROFF, P.J., and MAHER and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, Judge.

Patrick Burke, Jr. (hereafter defendant) appeals as of right the trial court's decision[189 MICHAPP 701] not to set aside a default judgment that was entered against him, alleging that he was not given proper notice of the hearing on plaintiff's motion for entry of the default judgment and that plaintiff failed to state a cause of action in support of the judgment. We affirm.

This lawsuit stems from an automobile accident involving plaintiff and defendant Paul Atkinson. While Paul Atkinson was waiting to make a left turn into a roadway from a private drive, defendant was in the roadway waiting for Atkinson to move so that he could make a left turn into the private drive. After defendant gave Atkinson a hand signal, Atkinson pulled out of the private drive and turned into the path of plaintiff's automobile. Plaintiff suffered injuries in the collision and filed suit against defendant, Paul Atkinson, and the owner of his vehicle, Karla Atkinson, on June 1, 1988.

Defendant was served notice on June 7, 1988, and failed to answer or otherwise defend against the action. Plaintiff filed a motion for entry of default on July 21, 1988. Notice of the entry of default was mailed to defendant on August 12, 1988.

Plaintiff moved for judgment by default on May 30, 1989, and a hearing was scheduled for July 21, 1989. By that time, defendant had retained an attorney, who filed an appearance on defendant's behalf and a motion to have the entry of default set aside. Defendant's attorney convinced the trial court to hold in abeyance plaintiff's motion for a default judgment, and a hearing on defendant's motion to set aside the default was held on August 7, 1989.

At the conclusion of the hearing, the trial court found that the default had been entered one year before proofs were heard for the purposes of entering[189 MICHAPP 702] a default judgment, that defendant was aware of the lawsuit but chose not to hire an attorney or respond to the complaint, that defendant's affidavit of merit claimed some defenses but failed to recite facts in support of those defenses, and that defendant did not show good cause for his failure to answer. Consequently, defendant's motion to set aside the default was denied, and a default judgment against defendant was entered on August 21, 1989.

Defendant claims in this appeal that the trial court abused its discretion in refusing to set aside the default because he was not provided notice of plaintiff's request for judgment as required by MCR 2.603(B)(1)(b) and because he showed good cause as required by MCR 2.603(D)(1). We disagree.

The decision to set aside a default is left to the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Yenglin v. Mazur, 121 Mich.App. 218, 221, 328 N.W.2d 624 (1982). According to the court rule, a "motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed." MCR 2.603(D)(1).

Good cause sufficient to warrant setting aside a default judgment includes (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements that created the default, or (3) some other reason showing that manifest injustice would result if the default judgment were allowed to stand. Glasner v. Griffin, 102 Mich.App. 445, 448, 301 N.W.2d 889 (1980). Manifest injustice would result if a default was not set aside where the plaintiff failed to state a claim [189 MICHAPP 703] upon which relief can be granted, because a complaint that fails to state a cause of action cannot support a judgment. Hunley v. Phillips, 164 Mich.App. 517, 523, 417 N.W.2d 485 (1987).

With respect to defendant's first issue, we find no defect or irregularity in the proceedings that would entitle defendant to have the default set aside. Although we agree that under MCR 2.603(B)(1)(b) notice "must be served at least 7 days before entry of the requested judgment," it appears from our review of the record that defendant was properly served with notice.

With regard to defendant's second issue, we cannot agree that plaintiff failed to state a cause of action because defendant did not owe plaintiff a legal duty of care. The elements of an action for negligence are (1) duty, (2) general standard of care, (3) specific standard of care, (4) cause in fact, (5) legal or proximate cause, and (6) damage. Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977). Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. Id. at 438-439, 254 N.W.2d 759. Where there is no legal duty, no actionable negligence exists. Butrick v. Snyder, 236 Mich. 300, 306, 210 N.W. 311 (1926).

The question of duty is one of law and for the court to decide. Moning, supra 400 Mich. at 436-437, 254 N.W.2d 759; Duvall v. Goldin, 139 Mich.App. 342, 347, 362 N.W.2d 275 (1984). The court must "determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty the breach of which may result in tort...