Saffian v. Simmons

704 N.W.2d 722 (2005) 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.

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]

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 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 not be commenced without the affidavit." VandenBerg v. VandenBerg, 231 Mich. App. 497, 502, 586 N.W.2d 570 (1998).

B

Defendant argues that because the affidavit was signed by a person unqualified as an expert witness under MCL 600.2169, the affidavit was invalid; accordingly, he had no duty to answer the complaint, and the default is void ab initio under White. We disagree.

In White, supra, the plaintiff failed to file an affidavit of merit or security for costs^[6] with her medical malpractice complaint. The Court observed that the plain language of MCL 600.2912d required a medical malpractice plaintiff to file either security for costs or an affidavit of merit with the complaint. Further, a defendant's duty to answer is conditioned on the filing of the affidavit or security for costs. The Court noted that MCL 600.2912e(1) provided that a defendant in a medical malpractice action shall file an answer "within 21 days after the plaintiff has furnished security or filed an affidavit in compliance with section 2912d...." White, supra at 76, 583 N.W.2d 499. Likewise, MCR 2.108(A)(6) stated in relevant part that "the defendant must serve and file an answer within 21 days after being served with the notice of filing the security for costs or the affidavit in lieu of such security required by MCL 600.2919d." White, supra at 76, 583 N.W.2d 499. Giving this language its plain and ordinary meaning, the Court concluded that "a plaintiff's filing of security for costs or an affidavit of meritorious claim is an absolute prerequisite to the defendant's obligation to answer or otherwise defend the action." Id. The Court held that, because the plaintiff never filed an affidavit of merit or security for costs, the defendant's "answer was not yet due" because the twenty-one-day period for filing the answer never began to run. Id. at 76-77, 583 N.W.2d 499.

We conclude that White does not control in this case. In White, an affidavit was never filed, and it was clear that the statutory requirements were not met. In this case, plaintiff filed a presumably valid affidavit of merit with the complaint.^[7] According to plaintiff's counsel's affidavit, at the time he filed the complaint, he believed that the affidavit of merit satisfied the statutory requirements.^[8] It was only in subsequent judicial proceedings that the affidavit was found to be deficient on the basis of this Court's holding in Decker v. Flood, 248 Mich.App. 75, 638 N.W.2d 163 (2001). In Decker, this Court observed that an endodontist is one who specializes in the practice of endodontics, and, thus, is not a general practitioner within the meaning of the statutory limitations on expert witnesses in medical malpractice cases. Id. at 83-84, 638 N.W.2d 163. However, Decker was not decided until October 26, 2001, after the default in this case was entered, and long after defendant's answer was due.

Moreover, in White, the Court expressly noted that although the plaintiff's medical malpractice complaint appeared to be deficient with regard to stating a claim for medical malpractice, the deficiencies did not relieve the defendant of his obligation to file an answer. White, supra at 78 n. 7, 583 N.W.2d 499. Likewise, the deficiency in the affidavit in this case did not relieve defendant of his duty to file an answer.

To hold that a duty to answer the complaint never arose in this case would open the floodgates to all manner of retrospective claims that a defendant had no obligation to respond to a summons and complaint. Such reasoning would undermine the fundamental purpose of default and the finality of judgments. It rewards dilatory response to lawsuits in circumstances in which a lawsuit is, by all initial accounts, valid.

Worse, to rule as defendant urges would create the opportunity for defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the affidavit of merit, depriving plaintiff of the legitimate opportunity to cure a defect if attacked in an answer or affirmative defense. A defendant would suffer no adverse consequences if a postdefault attack on the affidavit were successful. In the meantime, a plaintiff's claim is laid to rest as the limitation period expires.

The requirement that a defendant answer a complaint tests the adequacy of the complaint and affidavit. If procedural devices permit a complaint to go unanswered to no disadvantage, the test fails in its purpose. We decline to extend the holding in White, in which the affidavit was nonexistent, to the circumstances of this case.

C

The remaining question is whether the trial court abused its discretion in failing to set aside the default.

The ruling on a motion to set aside a default or a default judgment is entrusted to the discretion of the trial court. Where there has been a valid exercise of discretion, appellate review is sharply limited. Unless there has been a clear abuse of discretion, a trial court's ruling will not be set aside. [Alken-Ziegler, supra at 227, 600 N.W.2d 638 (citations omitted).]

We conclude that the court did not abuse its discretion. Following discovery, the court found that the telephone records called into question defendant's representation that the summons and complaint were faxed to the insurance carrier as indicated and that the fax was not received. After defendant had misled the court concerning setting aside the default, he 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.

It is clear that the court was not persuaded by defendant's assertion that he had a reasonable excuse for failing to timely answer the summons and complaint. Viewing the record, we find no basis for ruling otherwise.

It is undisputed that defendant was served with the summons and complaint on September 7, 2001. Twelve days later, on September 19, 2001, defendant's employee allegedly faxed the summons and complaint to the insurance carrier. However, defendant's phone records showed no charge for a long distance call on the alleged date of the fax. There was no contact with the insurance carrier to advise it of the summons and complaint, other than the alleged fax, and there was no follow-up to determine whether the fax was received. The insurance carrier had previous notice of the lawsuit because it was provided with the statutory notice of intent to file a claim in March 2001. Considering the facts on which the court acted, an unprejudiced person cannot say that there is no justification or excuse for the court's ruling. Id. at 228, 583 N.W.2d 499.

Although not directly relevant to the grounds for setting aside the default, the court's finding that defendant misled the court was germane to the court's considerations. At the hearing in December 2001, defendant argued that the default should be set aside and the case should be heard on the merits. Defendant did not argue the statute of limitations defense or the alleged defect in the affidavit at the time of the hearing even though Decker had already been decided by this Court. It was only later, in March 2002, that defendant cited Decker as the basis for his motion for summary disposition.

An appellate court may not substitute its judgment in matters falling within the discretion of the trial court. Alken-Ziegler, supra at 228, 600 N.W.2d 638. The trial court's decision to reinstate the default is entitled to great deference. Id. We find no circumstances warranting reversal.

Affirmed.

COOPER, J., concurred.

ZAHRA, J. (concurring in part and dissenting in part).

This case presents two distinct issues: (1) Whether a medical malpractice defendant is relieved of the duty to timely answer or otherwise respond to a complaint where the complaint was filed with a defective affidavit of merit and (2) whether the trial court properly reinstated a default that the court had previously set aside. I agree with the majority that defendant was required to answer or otherwise timely respond to the complaint, notwithstanding the defective affidavit of merit. Although the affidavit of merit was defective under MCL 600.2912d, defendant did not have the authority to unilaterally determine that the proffered affidavit of merit failed to comply with the requirements of MCL 600.2912d such that defendant was relieved of the duty to respond to the complaint. Had the Legislature intended to relieve a defendant of the obligation to answer or otherwise respond to a complaint filed with a defective affidavit, it would have specifically provided the defendant with such authority.

However, I disagree with the majority's conclusion that there are sufficient facts in the record to support the conclusion that defendant was properly defaulted. It is not clear from the trial court's findings whether the trial court concluded that defendant fabricated his claim that the failure to transmit the summons and complaint to his insurer was the product of excusable clerical error. I would vacate the default and remand for further factual findings on whether defendant had fabricated this claim. If the trial court concludes that defendant fabricated the facts supporting his motion to set aside the default, the default judgment should be reinstated and the trial court should impose monetary sanctions against defendant pursuant to MCR 2.114(E). If, however, the trial court concludes that defendant's claim of excusable clerical error was not fabricated, the trial court abused its discretion by reinstating the default. The ensuing default judgment should be set aside, and the trial court should rule on defendant's motion for summary disposition.

I. A Medical Malpractice Defendant Cannot Unilaterally Determine That a Proffered Affidavit of Merit Fails to Comply With MCL 600.2912d

MCL 600.2912e provides, in part, that "[i]n an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with section 2912d, the defendant shall file an answer to the complaint." (Emphasis added.) MCR 2.108(A)(6), which addresses the time for answering a complaint in a medical malpractice lawsuit, provides in pertinent part that "[i]n an action alleging malpractice ... the defendant must serve and file an answer within 21 days after being served with ... the affidavit ... required by MCL 600.2912d."^[1] (Emphasis added.) At issue in this case is whether a defendant is permitted to unilaterally determine whether an affidavit of merit fails to satisfy the requirements of MCL 600.2912d such that defendant need not answer the complaint.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v. Wilkes, 470 Mich. 661, 665, 685 N.W.2d 648 (2004). The best measure of intent is the words used by the Legislature. Lansing Mayor v. Pub. Service Comm., 470 Mich. 154, 164, 680 N.W.2d 840 (2004). "Where the language is unambiguous, ``we presume that the Legislature intended the meaning clearly expressed— no further judicial construction is required or permitted, and the statute must be enforced as written.'" Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002), quoting DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000); see also Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005). A provision of law is ambiguous when it irreconcilably conflicts with another provision or is equally susceptible to more than a single meaning. Lansing Mayor, supra at 166, 680 N.W.2d 840. "Where the language of a statute is of doubtful meaning, a court must look to the object of the statute in light of the harm it is designed to remedy, and strive to apply a reasonable construction that will best accomplish the Legislature's purpose." Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). Moreover, the Legislature is presumed to have knowledge of existing laws on the same subject and is presumed to have considered the effect of new laws on all existing laws. Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993). These same rules of construction apply to the interpretation of court rules. In re KH, 469 Mich. 621, 628, 677 N.W.2d 800 (2004).

Applying these principles of statutory construction, I conclude, contrary to defendant's argument, that the use of the phrase "in compliance with MCL 600.2912d" in MCL 600.2912e and the phrase "required by MCL 600.2912d" in MCR 2.108(A)(6) do not authorize a defendant to unilaterally determine whether plaintiff's affidavit of merit satisfies the detailed requirements of MCL 600.2912d. Rather, these phrases merely identify the type of affidavit that, if filed with the complaint, brings about a defendant's obligation to answer or otherwise file a responsive pleading to the complaint. This is not to say that a plaintiff may pursue a medical malpractice action with a defective affidavit of merit. A defendant may challenge a statutorily defective affidavit by responsive pleading, motion, or assertion of an affirmative defense. A defendant may not, however, ignore a complaint, allow a default judgment to be taken, and later attack the judgment on the basis of a defective affidavit.

We must presume that the Legislature was aware of established court procedure at the time it enacted this legislation. It is exclusively the province of the courts to determine the sufficiency of pleadings, the admissibility of evidence, and the efficient administration of justice in the courts. Nothing in MCL 600.2912d suggests that the Legislature intended to take this function away from the trial court and place it in the hands of the defendant.

This interpretation of MCL 600.2912e and MCR 2.108(A)(6) is consistent with other provisions of the Revised Judicature Act that address medical malpractice actions. MCL 600.2912c(1) provides, in pertinent part:

In an action alleging medical malpractice, a party named as a defendant in the action may, instead of answering or otherwise pleading, file with the court an affidavit certifying that he or she was not involved, either directly or indirectly, in the occurrence alleged in the action. [Emphasis added.]

Thus, in limited situations, the Legislature expressly granted to medical malpractice defendants the unilateral authority to avoid answering or otherwise filing a responsive pleading to a medical malpractice complaint. Had the Legislature intended to allow medical malpractice defendants to unilaterally determine whether an affidavit of merit failed to comply with the provisions of MCL 600.2912d so as to relieve the defendant of the obligation to file an answer or other responsive pleading, it would have expressly granted such authority. The omission of a provision in one part of a statute that is included in another part should be construed as intentional. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993); Polkton Twp. v. Pellegrom, 265 Mich.App. 88, 103, 693 N.W.2d 170 (2005).

II. The Trial Court Improperly Reinstated the Default Against Defendant

Defendant moved to set aside the default on December 10, 2001. Under MCR 2.603(D)(1), "[a] motion to set aside a default... shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed." The good cause and meritorious defense elements of a motion must be considered separately. Zaiter v. Riverfront Complex, Ltd., 463 Mich. 544, 553 n. 9, 620 N.W.2d 646 (2001). In regard to the good cause requirement, defendant proffered an affidavit from his employee, Mona Wilson, in which she stated that she personally faxed to the insurance company the summons and complaint. She also stated that "my fax machine does not print a verification or confirmation unless there is a communication problem and I did not receive any verification that the faxed transmittal had a communication problem and was not received by the ProNational Insurance Company." Further, Wilson affirmed that her "writing does appear on the top of the Summons as attached to my affidavit, . . . stating, ``faxed September 19th ProNational'" and that she made this notation immediately after she faxed the documents.

In regard to the affidavit of meritorious defense requirement, defendant proffered an affidavit identifying the factual basis of his defense. Defendant's affidavit, in general, averred that he did not breach the applicable standard of care and that the cause of plaintiff's injury stemmed from past chronic infections resulting from two previous root canals not performed by defendant.

The trial court granted defendant's motion to set aside the default. The trial court found the time frame in which defendant failed to answer was "relatively short," and that the "failed fax transmittal" was in part responsible for the delay and constituted a "reasonable excuse."

After defendant filed his motion for summary disposition based on plaintiff's defective affidavit of merit, plaintiff filed a motion requesting the trial court reconsider its order setting aside the default. Trial courts have discretion to reconsider previous rulings. MCR 2.119(F)(3) provides:

Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

After conducting a hearing, the trial court issued a written opinion and order denying defendant's motion for summary disposition and granting plaintiff's motion to reinstate the default, finding that "two factors were not argued or made known to the Court at the time of the motion to set aside the default and the Court was therefore misled at the time of the initial ruling on this matter."

The trial court, in addressing the first factor, stated that

it appears from the discovery that has been conducted by way of phone records and the testimony of Defendant's office manager, Mona Wilson, that it is questionable whether a good faith effort to transmit the summons and complaint by fax as alleged at the original motion to set aside the default is accurate. The testimony of Mona Wilson is that she did make this attempt, however, the phone records do not establish that any long distance call was made or billed to her phone system on the date of the alleged fax. This evidence removes the possibility that a long distance call was misdialed and the information faxed to the wrong number. The phone records established that there was no long distance call on the relevant date. It appears that a phone connection was not made on that date to a long distance number that would have allowed the machine to process the fax and these facts contradict the affidavit Mona Wilson.

The trial court stated that it found "questionable," whether there was "a good faith effort to transmit the summons and complaint by fax as alleged at the original motion to set aside the default...." The trial court further noted that the absence of any long distance call on the date of the alleged fax, in short, contradicts the affidavit of Mona Wilson. The obvious implication of these findings, considered along with the conclusion that it was misled at the time of the initial ruling on this matter, is that defendant fabricated his claim that the failure to transmit the summons and complaint to his insurer was the product of excusable clerical error. This Court has held that a motion for reconsideration of setting aside a default is properly granted when evidence is presented that "seriously call[s] into question" the factual allegations contained in the affidavit supplied in support of the motion to set aside the default. Michigan Bank-Midwest v. D.J. Reynaert, Inc., 165 Mich.App. 630, 646, 419 N.W.2d 439 (1988).

However, where there are allegations indicating that fraud has been committed on the court, it is generally an abuse of discretion for the court to decide the motion without first conducting an evidentiary hearing into the allegations. Rapaport v. Rapaport, 185 Mich.App. 12, 16, 460 N.W.2d 588 (1990); St. Clair Commercial & Savings Bank v. Macauley, 66 Mich. App. 210, 214-215, 238 N.W.2d 806 (1975); but see Michigan Bank-Midwest, supra at 643, 419 N.W.2d 439 (no evidentiary hearing is required where a party alleged to have committed fraud is not entitled to relief on certain alternative grounds). Here, while there may be evidence suggesting that defendant fabricated his claim, the absence of a long distance phone record on the day the fax was attempted does not necessarily defeat defendant's assertion that the fax was not received because of clerical error. As mentioned, Wilson's affidavit explains that she "did not receive any verification that the faxed transmittal had a communication problem and was not received by the ProNational Insurance Company." The absence of a long distance phone record is not inconsistent with this assertion, and, indeed, may even explain how she "did not receive any verification that the faxed transmittal had a communication problem...." That is, if there were never a phone connection, (for any number of reasons) there may not be any failed communication to verify, which is consistent with Wilson's averment that she believed that the fax was received. Thus, I conclude that the evidence is unclear in regard to whether defendant fabricated his claim that the failure to transmit the summons and complaint to his insurer was the product of excusable clerical error. Accordingly, I would vacate the order of default and remand for an evidentiary hearing on the matter.

The trial court also addressed a second basis for granting plaintiff's motion to reconsider setting aside the default. The trial court noted that defendant had argued in his brief in support of setting aside the default that Michigan favors meritorious litigation and that manifest injustice would result if defendant were not able to present proof to the trier of fact. The trial court held:

These arguments were made by the Defendant and relied upon by the Court in its assessment of its ruling in setting aside the default. What has unfolded subsequent to that ruling, however, is the Defendant's argument that the summons and complaint must now be dismissed with prejudice because the Plaintiff's Affidavit of Merit was signed by an expert in the field of endodontics concerning this particular root canal which gives rise to this action rather than someone in the field of general dentistry.

Further, the trial court stated:

It is patently unfair to allow the Defendant to successfully assert in his request to set aside the default that all litigants, whenever possible, should have their day in court knowing that upon granting this relief, Defendant will then be entitled to summary disposition based on an affidavit being executed by a dentist specializing in endodontics rather than general dentistry.

I conclude that the trial court abused its discretion in reinstating the default on this ground. The court rule addressing the setting aside of a default has only two elements. The defaulted party must show good cause for not timely pursuing the defense and "an affidavit of facts showing a meritorious defense." MCR 2.603(D)(1). Nothing in the court rule precludes a once-defaulted party from pursuing a defense other than the defense pleaded in the affidavit of meritorious defense under MCR 2.603(D). The requirement of an affidavit of meritorious defense essentially prevents a defaulted party from merely denying the plaintiff's allegations in a conclusory manner. See Miller v. Rondeau, 174 Mich. App. 483, 488, 436 N.W.2d 393 (1988). To the extent that the trial court reinstated the default merely because it did not approve of defendant pursuing a statute of limitations defense, the trial court erred.

III. Conclusion

Defendant lacked authority to ignore plaintiff's complaint, notwithstanding the defective affidavit of merit. I would vacate the default and the ensuing default judgment, and remand for an evidentiary hearing on the issue whether defendant's claim of clerical error to establish good cause for the failure to timely or otherwise respond to the complaint was fraudulent. To the extent the court concludes that defendant did not commit a fraud on the court, the trial court should rule on defendant's motion for summary disposition.^[2]

NOTES

[1] In an order entered April 12, 2002 (Docket No. 239005), another panel of this Court denied plaintiff's application for leave to file an interlocutory appeal of that decision.

[2] The lower court case register of actions indicates that an answer was filed, although no answer is found in the lower court record submitted on appeal.

[3] The parties agreed to settle plaintiff's claim while preserving defendant's right to appeal.

[4] Defendant's phone records showed that no long distance phone call was made on the date of the alleged fax that would have allowed the machine to process the fax, e.g., to a misdialed number.

[5] Compare Mouradian, supra at 571, 664 N.W.2d 805, quoting the same sentence from Scarsella, but omitting the introductory clause ("[P]laintiffs' complaint, filed without the affidavit of merit required by MCL 600.2912d, did not toll the limitations period because ``in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.'" [Punctuation and citation deleted.]).

[6] The statutory provision in effect at the time the plaintiff's complaint was filed required that a medical malpractice plaintiff file either security for costs or an affidavit of meritorious claim with the complaint. White, supra at 75-76, 583 N.W.2d 499.

[7] Defendant's sole challenge to the affidavit is based on the fact that Dr. Nearing limits his practice to endodontics; defendant does not claim that the affidavit is otherwise deficient.

[8] We recognize that, following an evidentiary hearing, the trial court concluded that plaintiff's counsel's belief was not reasonable in light of stipulated facts concerning the extent of plaintiff's counsel's investigation of defendant's credentials and Dr. Nearing's credentials before filing the lawsuit.

[1] MCR 2.108(A)(6) is antiquated in that it refers to the filing of security for costs required by MCL 600.2912d. The option to file security for costs was removed from MCL 600.2912d in 1993. 1993 PA 78. However, MCR 2.108(A)(6) was not amended to conform to the revised statute. See White v. Busuito, 230 Mich.App. 71, 76 n. 5, 583 N.W.2d 499 (1998).

[2] I express no opinion on the merit of defendant's motion for summary disposition based on the applicable statute of limitations.