Saffian v. Simmons, Docket No. 250645.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: NEFF, J.
• Citation: 704 N.W.2d 722,267 Mich. App. 297
• Parties: Kim SAFFIAN, Plaintiff-Appellee, v. Robert R. SIMMONS, D.D.S., Defendant-Appellant.
• Decision Date: 28 September 2005
• Docket Number: Docket No. 250645.

704 N.W.2d 722
267 Mich. App. 297

Kim SAFFIAN, Plaintiff-Appellee,
v.
Robert R. SIMMONS, D.D.S., Defendant-Appellant

Docket No. 250645.

Court of Appeals of Michigan.

Submitted January 4, 2005, at Lansing.

Decided July 7, 2005, at 9:05 a.m.

Released for Publication September 28, 2005.

704 N.W.2d 724

Bensinger, Cotant & Menkes, P.C. (by Scott R. Eckhold), Gaylord, for the plaintiff

Patrick & Kwiatkowski, PLLC (by Aaron J. Gauthier), Cheboygan, for the defendant.

Before: ZAHRA, P.J., and NEFF and COOPER, JJ.

NEFF, J.

Defendant appeals as of right a default judgment and a previous order denying his motion for summary disposition and reinstating a default. We affirm.

I. Introduction

In this dental malpractice case, we must decide whether defendant had a duty to respond to a summons and complaint given a later judicial determination after an evidentiary hearing that the affidavit of merit filed with the complaint did not comply with MCL 600.2912d(1), but was not "grossly nonconforming." We hold that defendant was not relieved of his duty to timely respond to the summons and complaint. Defendant was properly defaulted when he failed to timely respond, and the trial court properly considered whether defendant had shown good cause and a meritorious defense to warrant setting aside the default. We affirm the trial court's order denying defendant's motion for summary disposition and reinstating the default and we affirm the default judgment.

II. Facts and Procedure

On August 28, 2001, plaintiff filed suit alleging that defendant committed malpractice in performing a root canal. The complaint was accompanied by an affidavit of merit signed by Mark Nearing, D.D.S., whose dental practice is limited to root canals. Defendant failed to timely answer the complaint, and on October 4, 2001, plaintiff filed a default.

On December 10, 2001, defendant moved to set aside the default on the ground that defendant's employee faxed the summons and complaint to defendant's insurance carrier, but that the fax was not received, and therefore the carrier did not forward the complaint to its counsel for response. Further, plaintiff was not prejudiced, and defendant's affidavit established a meritorious defense based on the facts. At a hearing on the motion, defense counsel argued that the default should be set aside because policy favored setting aside defaults in favor of a fair, reasonable hearing on the merits and this case involved completely innocent circumstances of a failed communication. The trial court granted defendant's motion to set aside the default.¹

On January 4, 2002, defendant filed an answer to the lawsuit.² On March 20, 2002, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the statute of limitations was not tolled by the filing of the complaint because the affidavit of merit did not meet the statutory requirements. While that motion was pending, plaintiff moved for discovery sanctions or reinstatement of the default. The trial court denied defendant's motion for summary disposition, but granted plaintiff's motion to reinstate the default. The trial court concluded that the motion to set aside the default had been improvidently granted and that plaintiff's affidavit of merit, while technically deficient, was sufficient to commence the complaint.³

704 N.W.2d 725

In its opinion and order, the court noted that it earlier set aside the default on the basis of defendant's representations that the fax of the summons and complaint was not received by defendant's insurance carrier and the failure to try this case on the merits would result in manifest injustice to defendant. However, the court observed that, following discovery, defendant's phone records called into question defendant's representation that the summons and the complaint were faxed to the insurance carrier as indicated.⁴ Further, the court was misled concerning setting aside the default because defendant now sought dismissal of the case on the ground that the affidavit of merit was signed by an expert in the field of endodontics rather than general dentistry. The court concluded that, unlike White v. Busuito, 230 Mich.App. 71, 583 N.W.2d 499 (1998), in which the plaintiff filed no affidavit of merit with the complaint and, therefore, failed to commence a suit, here the affidavit was filed. Consequently, defendant was not relieved of his obligation to answer or otherwise defend the action and the default was not void ab initio. The court denied defendant's motion for reconsideration

III. Standard of Review

We review de novo a trial court's decision on a motion for summary disposition. Auto Club Group Ins. Co. v. Burchell, 249 Mich.App. 468, 479, 642 N.W.2d 406 (2001).

A motion to set aside a default or a default judgment is to be granted only if the movant shows good cause and files an affidavit demonstrating a meritorious defense. MCR 2.603(D)(1). Good cause consists of: (1) a substantial procedural defect or irregularity or (2) a reasonable excuse for the failure to comply with the requirements that created the default. Manifest injustice is not an independent factor in establishing good cause. It is the result that would occur if a default were allowed to stand after a party had demonstrated good cause and a meritorious defense. Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 233, 600 N.W.2d 638 (1999). The decision to grant or deny a motion to set aside a default or a default judgment is within the discretion of the trial court. Park v. American Cas. Ins. Co., 219 Mich.App. 62, 66, 555 N.W.2d 720 (1996).

IV. Analysis

The statute of limitations for a medical malpractice action is two years. MCL 600.5805(6). To commence a medical malpractice action, a plaintiff must file both a complaint and an affidavit of merit. MCL 600.2912d(1). The affidavit of merit must be "signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169]." MCL 600.2912d(1). If the defendant against whom testimony is offered is a general practitioner, the expert witness during the year immediately preceding the occurrence at issue must have devoted a majority of his or her professional time to either or both active clinical practice as a general practitioner or instruction of students in an accredited health professional school or residency or clinical research program in the same health profession in which the party against whom the testimony is offered is licensed. MCL 600.2169(1)(c).

An affidavit of merit that is grossly nonconforming to the statutory requirements is not an affidavit of merit that

704 N.W.2d 726

satisfies the statutory filing requirements and does not support the filing of a complaint that tolls the running of the period of limitations. Geralds v. Munson Healthcare, 259 Mich.App. 225, 239-240, 673 N.W.2d 792 (2003); Mouradian v. Goldberg, 256 Mich.App. 566, 573-574, 664 N.W.2d 805 (2003)

A

It is undisputed that plaintiff's complaint was filed on August 28, 2001, before the expiration of the period of limitations, and the complaint was accompanied by an affidavit of merit signed on July 10, 2001, by Mark V. Nearing, D.D.S. Defendant argues that the affidavit of merit was insufficient to commence the lawsuit and thereby toll the period of limitations because Nearing was not a properly qualified affiant under MCL 600.2169 and the trial court found that plaintiff's counsel did not have the reasonable belief that Nearing was qualified, as required for filing under MCL 600.2912d(1). However, whether defendant may have been entitled to dismissal on the basis that the affidavit was deficient and did not toll the period of limitations is not the threshold question in this case. Defendant failed to timely answer the complaint or otherwise defend the action, and a default was entered. "Once the default of a party has entered, that party may not proceed with the action until the default has been set aside by the court in accordance with [MCR 2.603(D)] or MCR 2.612." MCR 2.603(A)(3).

Cases cited by defendant that address dismissal in the context of the expiration of the period of limitations, an affirmative defense, are inapposite. Scarsella v. Pollak, 461 Mich. 547, 550 n. 1, 551-552 n. 2, 607 N.W.2d 711 (2000). "[T]he purpose of a tolling provision is to protect a plaintiff from a statute of limitations defense." Burton v. Reed City Hosp. Corp., 471 Mich. 745, 754-755, 691 N.W.2d 424 (2005). A statute of limitations defense must be raised in a defendant's first responsive pleading or in a motion filed before that pleading. MCR 2.116(D)(2); Burton, supra at 755, 691 N.W.2d 424. "[T]he remedy against a party who `fail[s] to plead or otherwise defend' in an action is default." Id. at 756, 691 N.W.2d 424, quoting MCR 2.603(A)(1).

Although this Court has held that a complaint filed with an affidavit that is defective for purposes of MCL 600.2912d(1) is insufficient to "commence" a medical malpractice action, Geralds, supra at 240, 673 N.W.2d 792, our Supreme Court has repeatedly instructed that cases decided in the context of the tolling of the statutes of limitations are factually and legally distinguishable from cases that do not involve a statute of limitations issue. Scarsella, supra. In Scarsella, the Supreme Court adopted this Court's opinion, which stated, "for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit."⁵ Id. at 549, 607 N.W.2d 711, quoting Scarsella v. Pollak, 232 Mich.App. 61, 64, 591 N.W.2d 257 (1998) (emphasis added). Cases not involving a statute of limitations issue are of a different view and must be analyzed accordingly. "While § 2912d states the affidavit of merit `shall' be filed with the complaint, it does not indicate the action may

704 N.W.2d 727

not be commenced without...