Kenneth E Collins v. Anderson Fork Lift Maintenance Company ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH E. COLLINS and RENETTA COLLINS, UNPUBLISHED
December 21, 2023
Plaintiffs-Appellees,
v No. 363080
Wayne Circuit Court
ANDERSON FORK LIFT MAINTENANCE LC No. 20-005488-NO
COMPANY, JD HI-LO TIRE COMPANIES,
ANDERSON LIFT MATERIAL HANDLING
COMPANY, and FORKLIFT TIRES OF EAST
MICHIGAN, INC.,
Defendants,
and
SUPERIOR TIRE & RUBBER CORPORATION,
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
In this action for negligence, breach of warranty, and loss of consortium, defendant,
Superior Tire & Rubber Corporation (“Superior Tire”), appeals by delayed leave granted1 the trial
court’s order denying Superior Tire’s motion to reopen the case and set aside the default and
default judgment. We vacate the default and default judgment and remand.
This case arises out of a forklift accident. Plaintiff, Kenneth E. Collins,2 was operating the
forklift when its right rear tire separated from and fell off of its wheel and hub, causing Kenneth
1
Collins v Anderson Fork Lift Maintenance Co, unpublished order of the Court of Appeals, entered
March 9, 2023 (Docket No. 363080).
2
The claim of plaintiff Renetta Collins was a derivative claim for loss of consortium.
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injury. Superior Tire is a corporation in the business of manufacturing industrial tires. Plaintiffs
filed suit, and Superior Tire was not initially named as a defendant. After filing their initial
complaint, plaintiffs sent requests for information to Superior Tire’s human resources director
asking if Superior Tire was responsible for the defective maintenance of the forklift tire. Superior
Tire responded, asserting that it was not in the business of maintaining and repairing tires and had
no responsibility for the accident.
Superior Tire was added as a defendant in plaintiffs’ fourth-amended complaint. Plaintiffs
sent the summons and complaint to Superior Tire by certified mail. The certified mail receipt was
received and signed by an hourly employee of Superior Tire, who was not an officer, director, or
manager of the corporation. Superior Tire did not answer the complaint.
The trial court entered a default and a default judgment for $1,000,000 based on Superior
Tire’s failure to appear or otherwise defend the matter. After receiving a writ of garnishment,
Superior Tire moved to reopen the case and set aside the default and default judgment, which the
trial court denied. This appeal followed.
Superior Tire argues the default and default judgment are void for lack of jurisdiction, and
therefore the trial court should have set aside the default and default judgment under MCR
2.612(C)(1)(d). We agree.
“A court cannot adjudicate an in personam controversy without first having obtained
jurisdiction over the defendant by service of process. . . .” Lawrence M Clarke, Inc v Richco
Constr, Inc, 489 Mich 265, 274; 803 NW2d 151 (2011) (quotation marks, citations, and brackets
omitted).
A court must obtain personal jurisdiction over a defendant in order to satisfy the
due process requirement that a defendant be informed of an action by the best
means available under the circumstances. The fundamental requisite of due process
of law is the opportunity to be heard. . . . This right to be heard has little reality or
worth unless one is informed that the matter is pending. . . . [Id. (quotation marks
and citations omitted).]
“[T]he proper basis for vacating the default judgment where service of process was defective is
that the defective service deprived the trial court of personal jurisdiction over the defendant and
the trial court was, therefore, without legal authority to render a judgment (by default or
otherwise).” Dogan v Mich Basic Prop Ins Ass’n, 130 Mich App 313, 320; 343 NW2d 532(1983).3
3
Cases decided before November 1, 1990 are not binding precedent but may be considered
persuasive authority. In re Stillwell Trust, 299 Mich App 289, 299 n 1; 829 NW2d 353 (2012);
MCR 7.215(J)(1) (this Court “must follow the rule of law established by a prior published decision
of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special panel of the Court of Appeals.”).
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MCR 2.612(C) provides grounds for relief from judgment. Under MCR 2.612(C)(1)(d)
“the court may relieve a party or the legal representative of a party from a final judgment, order,
or proceeding” on the grounds that “[t]he judgment is void.” In cases where the trial court “lacked
personal jurisdiction over the defendant, but such jurisdiction was required for entry of a valid
judgment[,] . . . the judgment is void and relief from it may be obtained at any time under MCR
2.612(C)(1)(d).” Tindle v Legend Health, PLLC, ___ Mich App ___, ___; ___ NW2d ___ (2023)
(Docket No. 360861); slip op at 2 (BOONSTRA, J. concurring in part, dissenting in part), quoting 3
Longhofer, Michigan Court Rules Practice (5th ed), § 2612.8, p 505 (quotation marks omitted).
In this case, the trial court lacked jurisdiction over Superior Tire because Superior Tire was
never properly served. MCR 2.105(D) provides four ways service of process may be made on a
domestic or foreign corporation. Plaintiffs argue service was proper under MCR 2.105(D)(1) and
MCR 2.105(D)(2). We disagree.
Under MCR 2.105(D)(1), service may be made by “serving a summons and a copy of the
complaint on an officer or the resident agent.” Under MCR 2.105(D)(2), service may be made by
“serving a summons and a copy of the complaint on a director, trustee, or person in charge of an
office or business establishment of the corporation and sending a summons and a copy of the
complaint by registered mail, addressed to the principal office of the corporation.”
[T]he court rules require personal service on an officer, registered agent, director,
trustee, or person in charge of an office or business establishment. MCR
2.105(D)(1) and (2). If service is made by serving a summons and copy of the
complaint on a director, trustee, or person in charge of an office or business
establishment, the plaintiff must also send a summons and complaint “by registered
mail, addressed to the principal office of the corporation.” MCR 2.105(D)(2).
[Bullington v Corbell, 293 Mich App 549, 557; 809 NW2d 657 (2011).]
MCR 2.105(D)(1) was not satisfied because plaintiffs failed to personally serve an officer
or registered agent. MCR 2.105(D)(2) has two prongs that must be met—a plaintiff must
personally serve a “director, trustee, or person in charge of an office or business establishment of
the corporation” and send the summons and complaint “by registered mail, addressed to the
principal office of the corporation.” MCR 2.105(D)(2) was not satisfied because plaintiffs failed
to personally serve a director, trustee, or person in charge of an office or business establishment of
the corporation.
Because Superior Tire was never properly served the summons and complaint, the trial
court never obtained personal jurisdiction over Superior Tire. “[A]ny actions of a court regarding
a matter over which it lacks jurisdiction are void.” Kasberg v Ypsilanti Twp, 287 Mich App 563,
566; 792 NW2d 1 (2010). The default and default judgment are therefore void.
This conclusion renders moot Superior Tire’s alternative argument that we should set aside
the default and default judgment under MCR 2.603(D)(1). “An issue is moot if an event has
occurred that renders it impossible for [this] [C]ourt to grant relief.” Attorney General v Pub Serv
Comm, 269 Mich App 473, 485; 713 NW2d 290 (2005). It is unnecessary to consider whether
good cause and a meritorious defense existed under MCR 2.603(D)(1) because the trial court
lacked jurisdiction and the default and default judgment are void. See MCR 2.603(D)(1) (“A
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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 a statement of facts showing
a meritorious defense, verified in the manner prescribed by MCR 1.109(D)(3), is filed.”) (emphasis
added).
The default and default judgment entered against Superior Tire are vacated, and this matter
is remanded to the trial court for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola
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