APSEY v. MEMORIAL HOSPITAL (ON RECONSIDERATION), 266 Mich. App. 666

JANSEN, J. Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right a circuit court order granting

summary disposition for defendants, Memorial Hospital, doing business in Owosso as Memorial Healthcare Center; two of its practitioners, doctors Russell H. Tobe and James H. Deering; and the business entities under which they practice. We reverse and remand for further proceedings. Plaintiffs commenced this action in November 2001, stating that Sue Apsey was admitted to Memorial Healthcare Center for an “exploratory laparotomy,” which resulted in the removal of a large ovarian cyst. Various complications followed.

Plaintiffs allege that misdiagnoses and errant reporting attendant to those complications caused Sue Apsey to become “septic,” requiring several follow-up surgeries. Plaintiffs’ affidavit of merit was prepared in Pennsylvania, using a notary public of that state. A normal notarial seal appears on the document, and it is not disputed that plaintiffs initially provided no special certification to authenticate the credentials of the out-of-state notary public. Instead, plaintiffs provided that certification after the period of limitations had run on their cause of action. Defendants moved in the trial court for

summary disposition with regard to plaintiffs’ medical malpractice claims, citing MCL 600.2912d and 600.2102. In granting the motions, the court reasoned that the failure to provide the special certification was fatal to the notarization and, thus, that the affidavit itself was a nullity, rendering plaintiffs’ complaint invalid. At issue in this appeal is whether MCL 565.262, the general statute concerning notarial acts, governs affidavits of merit in medical malpractice cases, or whether the more demanding requirements of MCL 600.2102 apply. Plaintiffs contend that the trial court erred by granting defendants’ motions for

summary disposition and holding that an out-of-state affidavit of merit in a medical malpractice case not only must be notarized, but also must be accompanied by a certificate setting forth the notary’s authority. This Court reviews de novo a trial court’s decision on a motion for

summary disposition as a question of law. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). Statutory

interpretation likewise presents a question of law, calling for review de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). MCL 600.2912d(1) provides, in part: [T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness. ...

The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiffs attorney concerning the allegations contained in the notice .... Subsections 1(

a) through (

d) set forth the particulars to which the expert must attest. An affidavit for these purposes must be “confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000). In the medical malpractice context, a valid affidavit of merit must be filed with the complaint in order to commence an action and to toll the period of limitations. Scarsella v Pollak, 461 Mich 547, 552-553; 607 NW2d 711 (2000).

In this case, neither the need for an affidavit of merit nor the requirement that one be notarized is in dispute. The controversy, instead, concerns what constitutes a valid out-of-state notarization. In 1924, our Supreme Court reiterated the legislative requirement that, if an affidavit submitted to a court is authenticated by an out-of-state notary public, in order for the court to consider the affidavit, the signature of the sister-state notary public must be certified by the clerk of the court of record in the county in which the affidavit was executed.

In re Alston’s Estate, 229 Mich 478, 480-482; 201 NW 460 (1924). Similarly, MCL 600.2102, effective in 1963, states that “where by law the affidavit of any person residing in another state . .. is required, or may be received injudicial proceedings in this state, to entitle the same to be read, it must be authenticated .. . .” MCL 600.2102(4) specifies that an affidavit taken in a sister state may be taken before ... any notary public ... authorized by the laws of such state to administer oaths therein.

The signature of such notary public .. . shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court. This language closely mirrors that which was construed by our Supreme Court in In re Alston’s Estate, supra at 481; see also Wallace v Wallace, 23 Mich App 741, 744-745; 179 NW2d 699 (1970).

Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), MCL 565.261 et seq. “Notarial acts” are defined as “acts that the laws of this state authorize notaries public of this state to perform, including. . . taking proof of execution and acknowledgements of instruments, and attesting documents.” MCL 565.262(a). The URAA provides that notarial acts performed in a sister state may function in this state as if performed by a Michigan notary public if performed by “[a] notary public authorized to perform notarial acts in the place in which the act is performed.” MCL 565.262(a)(i).

MCL 565.263(1) of the URAA provides: If the notarial act is performed by any of the persons described in subdivisions (

a) to (d) [sic] of

section 2, other than a person authorized to perform notarial acts by the laws or regulations of a foreign country, the signature, rank or title and serial number, if any, of the person are sufficient proof of the authority of a holder of that rank or title to perform the act. Further proof of his authority is not required.

MCL 565.263(4) states that “[t]he signature and title of the person performing the act are prima facie evidence that he is a person with the designated title and that the signature is genuine.” If the present inquiry were to be decided on the basis of the URAA, the notarization of the affidavit in question would indisputably be valid. Plaintiffs’ affidavit of merit bears the signature and notary seal of a Pennsylvania notary public. That status in another state carries over to this state, and the signature and the title are prima facie evidence of authenticity, MCL 565.263(4).

But the signature and the notary seal do not satisfy the requirements set forth in MCL 600.2102(4). The question, then, is whether MCL 565.262 affects MCL 600.2102, and, if so, in what manner. When this issue was initially raised before the trial court, only the applicability of MCL 600.2102 was argued. The court recognized the inflexibility of that statute and decided to grant

summary disposition. In a subsequent hearing that the court treated as a motion for reconsideration, plaintiffs argued that MCL 565.262 should apply to the exclusion of MCL 600.2102. The court was not persuaded, and, without elaboration, stated that arguments concerning MCL 565.262 would not have changed its earlier decision. Defendant Deering argues that the specific mention of affidavits in MCL 600.2102 indicates greater legislative specificity than the general mention of notarial acts in MCL 565.262.

However, the general language of the latter is obviously a consequence of the statute covering acts performed in some cases by persons other than notaries public and coverage of notarial acts performed on documents other than affidavits. The primary purpose of statutory

interpretation is to ascertain and give effect to the intent of the Legislature. Haworth, supra at 227. Notaries public, either in-state or out-of-state, are expressly mentioned in MCL 565.262(a), along with the function of “attesting documents.” Affidavits, and the role of the notary public in executing them, are obviously envisioned.

Both plaintiffs and defendants raise issues regarding the placement of the statutes. “[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in their natural and ordinary sense.” Gross v Gen Motors Corp, 448 Mich 147, 160; 528 NW2d 707 (1995) (emphasis added). It is well, then, to note the structural placement of the two statutory schemes. The URAA appears among statutes governing conveyances of real property.

The emphasis, then, is not on documents submitted to Michigan courts, but on documents that have potentially great legal significance in other contexts, e.g., memorializing agreements or recording conveyances and interests. However, contrary to defendants’ contentions, we find that the URAA and its requirements are not limited to conveyances of real property.

MCL 600.2102 appears within the Revised Judicature Act, MCL 600.101 et seq., and retains its predecessor’s language concerning affidavits “received in judicial proceedings,” which our Supreme Court construed as strictly requiring that special certification accompany notarizations by out-of-state notaries public. In re Alston’s Estate, supra at 481-482. Plaintiffs point out that this statute is sandwiched between provisions governing evidence and argue that it thus applies only when the affidavit in question is to be read into evidence.

However, the statute itself sets forth what is required for a sister-state affidavit “to be read,” not “to be read specifically into evidence.” The Legislature is presumed to have intended the meaning it plainly expressed, Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). “Read” for this purpose means acknowledged and considered by the court, not necessarily read into evidence. See Berkery v Wayne Circuit Judge, 82 Mich 160,167-168; 46 NW 436 (1890).

Thus, neither the provisions of the URAA, in particular MCL 565.262 and MCL 565.263, nor MCL 600.2102 are rendered inapplicable on the basis of structural placement. These statutes relate to authentication and share the common purpose of requiring verification for the authenticity of out-of-state notarial acts. As such, the statutes are in pari materia. Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if each contains no reference to the other and they were enacted on different dates.

State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998); Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127; 146; 662 NW2d 758 (2003). And, statutes that have a common purpose should be read to harmonize with each other in furtherance of that purpose. Jennings v Southwood, 446 Mich 125, 136-137; 521 NW2d 230 (1994); Antrim Co Treasurer v Dep’t of Treasury, 263 Mich App 474, 481; 688 NW2d 840 (2004). If two statutes lend themselves to a construction that avoids conflict, that construction should control.

House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993); Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 280; 597 NW2d 235 (1999). “Where a specific statutory provision differs from a related general one, the specific one controls.” Antrim, supra at 484, citing Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994). The two statutes can be harmonized. The URAA provides in pertinent part, “Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state.” MCL 565.268.

The Legislature is charged with 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 NW2d 519 (1993); Kalamazoo v KTS Industries, Inc, 263 Mich App 23, 34; 687 NW2d 319 (2004).

MCL 600.2102 is a law of this state that requires more specific recognition requirements for notarial acts authenticating an affidavit of a person residing in another state that is received in judicial proceedings; i.e., it requires that the signature of a notary public on an affidavit taken out of state “be certified by the clerk of any court of record in the county where such affidavit shall be taken, under seal of said court.” As such, the URAA, enacted after MCL 600.2102, does not diminish or invalidate the more specific and more formal requirements of MCL 600.2102.

Furthermore, this harmonious application of the URAA and MCL 600.2102 avoids conflict. See House Speaker, supra at 568-569; Travelers Ins, supra at 280. For these reasons, we find that the more specific requirements of MCL 600.2102 of the Revised Judicature Act control over the general requirements of MCL 565.262 of the URAA. See Antrim, supra at 484, citing Gebhardt, supra at 542-543.

In other words, MCL 565.262 governs notarial acts, including the execution of affidavits, in general, to which MCL 600.2102 adds a special certification requirement when the affidavit is to be read, meaning officially received and considered, by the judiciary. This special certification requirement of MCL 600.2102 is not diminished or invalidated by the subsequently enacted URAA. See MCL 565.268. Instead, MCL 565.268 allows for the statutes to be harmonized. As such, the special certification is a necessary part of an affidavit submitted to the court to meet the requirement of MCL 600.2912d(1).

Next, we must address the effect of plaintiffs’ failure to properly authenticate the affidavit of merit, which is a failure that technically rendered the affidavit of merit defective. In Scarsella, the Supreme Court was faced with a complete failure to file an affidavit of merit. The Court left for later decisional development the question of the appropriate legal response when a “timely filed affidavit is inadequate or defective.” Scarsella, supra at 553.

Such decisional development from this Court indicates that, “whether the adjective used is ‘defective’ or ‘grossly nonconforming’ or ‘inadequate,’ ” where a plaintiffs affidavit failed to meet the applicable statutory standards, it “was defective and did not constitute an effective affidavit,” and therefore failed to support a medical malpractice complaint for the purposes of tolling the period of limitations. Geralds v Munson Healthcare, 259 Mich App 225, 240; 673 NW2d 792 (2003).

See also VandenBerg v VandenBerg, 253 Mich App 658, 662; 660 NW2d 341 (2002) (unless a plaintiff has moved for a statutorily provided extension, the plaintiff may not file a medical malpractice complaint without an affidavit of merit, then cure that deficiency by filing the affidavit after the period of limitations has run). Consequently, a belatedly filed certification of an out-of-state notary public would not cure the defect in an otherwise timely complaint and affidavit.

Because of the injustice and inequity that could result from our determination on this issue of first impression, we will address whether the ramifications (a dismissal based on the claims being time barred) of our

interpretation should be applied retroactively or prospectively. “ ‘ “The general rule is that judicial decisions are to be given complete retroactive effect. . . . ” ’ ” Ousley v McLaren, 264 Mich App 486, 493; 691 NW2d 817 (2004), quoting Lincoln v Gen Motors Corp, 461 Mich 483, 491; 607 NW2d 73 (2000), quoting Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986) (intermediate citation deleted). “ ‘[A] more flexible approach is warranted where injustice might result from full retroactivity.’ ” Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003), quoting Pohutski, supra at 696, citing Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997).

Complete prospective application has been deemed appropriate for a decision that “decides an ‘ “issue of first impression whose resolution was not clearly foreshadowed.” ’ ” Lindsey, supra at 68, quoting People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), quoting Chevron Oil Co v Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971). In essence, the question before this Court is an issue of first impression whose resolution, because of the URAA, was not clearly foreshadowed.

Our decision is based on a law, MCL 600.2102, requiring a special certification for out-of-state notarial acts, which law has been overlooked by practitioners in medical malpractice cases or, more likely, practitioners have been under the impression that the URAA, enacted subsequently to MCL 600.2102, was the applicable statute and that special certification was not required.

Plaintiffs’ counsel raised a concern at oral argument with regard to the significant effect this holding could have on medical malpractice cases in Michigan because a majority of affidavits of merit for medical malpractice cases come from out of state and practitioners have relied on the URAA validation requirements for the out-of-state notarial acts.

Amici curiae have also raised concerns regarding practitioners’ beliefs that the less restrictive URAA requirements for verification of notarial acts was sufficient verification and regarding the significant effect this decision would have on medical malpractice claims, which are in large part supported by affidavits of merit from out-of-state doctors. Apparently, there has been confusion in the legal community about whether the more relaxed standards of the URAA applied. In light of the apparent reliance on the URAA by the legal community, we believe that justice requires a prospective application.

See Gladych, supra at 606. Retroactive application would result in the dismissal of a large number of otherwise meritorious medical malpractice claims. Our Supreme Court has recognized that “resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy.” Riley v Northland Geriatric Ctr (After Remand), 431 Mich 632, 644; 433 NW2d 787 (1988) (opinion by GRIFFIN, J.).

Fairness and public policy both support a prospective application because serious injustices could result from a retroactive application and prospective application of the ramifications for the failure to provide the MCL 600.2102(

d) certification accomplishes a “maximum of justice” under the presented circumstances. Lindsey, supra at 68. In the present case, equity also supports a deviation from the strict compliance with the statute of limitations because of understandable confusion regarding the applicable statute. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004); Ward v Rooney-Gandy, 265 Mich App 515, 522 n 4; 696 NW2d 64 (2005).

In Bryant, supra at 432-433, our Supreme Court, in discussing why a medical malpractice claim that would typically be time barred should, instead, proceed, provided: The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan .... Plaintiffs failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights....

Plaintiff has stated two claims that require expert testimony and therefore sound in medical malpractice. Although these claims were filed after the applicable period of limitations had run and would ordinarily be time-barred, the procedural features of this case dictate that plaintiff should be permitted to proceed with her medical malpractice claims....

Similarly, plaintiffs in the present case, apparently like a significant number of the bar of Michigan, were under the impression that meeting the requirements of the URAA was sufficient to verify an out-of-state notarial act on an affidavit of merit filed with the court to support a medical malpractice claim. Dismissal of plaintiffs’ complaint in the present case, as in Ward, would be “fundamentally unfair and constitute [] an unjust technical forfeiture” of the cause of action. Ward, supra at 523. The equities in this case dictate that we find plaintiffs’ claims are not time barred.

But for the certification, plaintiffs’ complaint would not have been dismissed. A sound affidavit of merit exists, the only problem being the failure to certify as required by MCL 600.2102(4) before the expiration of the period of limitations. The statutory purpose for medical malpractice affidavits of merit is to deter frivolous medical malpractice claims. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 47; 594 NW2d 455 (1999).

This purpose was served in the present case as defendants were put on timely notice of the claims with an affidavit of merit that met every requirement, except that the out-of-state notarial act had not been properly certified. As in Bryant, the “procedural features of this case dictate that plaintiffts] should be permitted to proceed with [the] medical malpractice claims.” Bryant, supra at 433. Thus, the equities also weigh in favor of plaintiffs’ action not being barred by the statute of limitations. For the above stated reasons, reversing the trial court’s order granting defendants’ motions for

summary disposition and allowing plaintiffs’ claims to proceed best serve justice and equity. Plaintiffs, in this case, have already presented the proper certification. With regard to all medical malpractice cases pending in which plaintiffs are not in compliance with MCL 600.2102(4), on the basis of justice and equity, plaintiffs can come into compliance by filing the proper certification. Furthermore, justice and equity also dictate a strict application from the date of this opinion.

From the date of the issuance of this opinion, any affidavit of merit acknowledged by an out-of-state notary filed without the proper certification will not toll the period of limitations because the legal community is now on notice. To the extent plaintiffs and amici curiae raise further arguments regarding the certification process being outdated, potentially impossible in some states, etc., these questions are best left for the Legislature. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. GAGE, J., concurred.

After the enactment of the URAA, this Court, in Sellers v Goldapper, unpublished opinion per curiam, issued November 4, 1997 (Docket No. 196914), found a defendant’s affidavit showing a meritorious defense to he a nullity under MCL 600.2102(4) for lack of certification of the notary’s signature when the defendant was a New York resident.

We view this unpublished opinion by a panel of this Court, requiring an affidavit from an New York resident to meet the requirements of MCL 600.2102(4), as persuasive, because of the limited case law, but note that unpublished opinions are not binding under the rules of stare decisis. MCR 7.215(C)(1); see also Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004). We note that the dissent purports to harmonize MCL 600.2102 and the various provisions of the URAA by rendering significant parts of MCL 600.2102(

d) nugatory. In construing a statute, a court should presume that every word has some meaning and should avoid any construction that would render any part of a statute surplusage or nugatory Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004); Edgewood Dev, Inc v Landskroener, 262 Mich App 162, 167; 684 NW2d 387 (2004). The dissent’s

interpretation basically makes the certification requirement in MCL 600.2102(4) worthless or nugatory because by interpreting the URAA as an additional method that can be used instead of using the MCL 600.2102, the certificate provision is no longer required. Further, the dissent provides that the purpose of both statutes is “to verify the authenticity of notarial acts, including those involving affidavits.” Post at 684. As noted, statutes that have a common purpose should be read to harmonize with each other in “furtherance of that purpose.” Antrim Co Treasurer, supra at 481.

The dissent’s attempt to harmonize the statutes does not further a purpose of verifying the authenticity of a notarial act, but, instead, limits the requirements for verifying the authenticity of an out-of-state notarial act. When reading statutes to avoid conflict, the construction given should give effect to each without repugnancy, overreaching, absurdity, or unreasonableness. Livonia Hotel, LLC v City of Livonia, 259 Mich App 116, 131; 673 NW2d 763 (2003). The dissent does not give effect to MCL 600.2102.

To avoid conflict and harmonize the statutes, the dissent cites MCL 565.268, which provides that the URAA is “an additional method of proving notarial acts.” But the dissent avoids citing the next sentence of the MCL 565.268, which provides, “Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state.” To accept our dissenting colleague’s harmonizing of the statutes would clearly diminish the requirements of MCL 600.2102. If two statutes lend themselves to a construction that avoids conflict, that construction should control.

House Speaker, supra at 568-569; Travelers Ins, supra at 280. The only way to avoid conflict when reading the statutes together is to read MCL 600.2102 as requiring additional requirements for affidavits to be read by the court. This does not conflict with the URAA because of MCL 565.268.

Our position is further supported by Lee v Putz, unpublished memorandum opinion and order of the United States District Court, Western District of Michigan, issued December 10, 2003 (Docket No. 1:03-CV-267), pp 4-5, in which the district court, applying MCL 600.2102, found in connection with an affidavit of merit notarized hy an out-of-state notary that, “[b]ecause an affidavit without the appropriate certification is null and void under Michigan law, Plaintiff has failed to assert a claim that is cognizable in Michigan state courts.” The court further found that the plaintiff could not cure the defect because of the statute of limitations.

We note that defendant Deering appended this federal court holding to his brief; however, for reasons not explained, the names of the parties, and the file number, have been redacted. But an unredacted copy is attached to defendant Memorial Hospital’s brief. We further note that, although not binding, this case stands as a recent example in which MCL 600.2102 was held to impose a certification requirement on out-of-state notaries public involved with affidavits of merit in medical malpractice cases. See Sharp v City of Lansing, 464 Mich 792, 802-803; 629 NW2d 873 (2001).

Although full retroactivity is favored when a decision “does not announce a new principle of law,” Michigan Ed Employees Mut Ins Co v Morris, 460 Mich 180, 190; 596 NW2d 142 (1999), neither our Supreme Court nor this Court has ever limited application to when new principles of law are announced.

The brief amicus curiae of the State Bar of Michigan asserts, “The vast majority of the members of the State Bar of Michigan who have supplied out-of-state affidavits have supplied uncertified affidavits in the belief that the plain language of the URAA would be given effect.” The brief amicus curiae on behalf of the State Bar of Michigan Negligence

Section and Elder Law

Section asserts, “Attorneys in this State .... have read this URAA as obviating the need to obtain formal certification of that authority... as required by MCL 600.2102, in order to present a valid affidavit of merit to the court in compliance with MCL 600.2912d.” See n 5 of this opinion. The wisdom of a statute is for the determination of the Legislature, and the law must be enforced as written.

Smith v Cliffs on the Bay Condo Ass’n, 463 Mich 420, 430; 617 NW2d 536 (2000); City of Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959); In re Worker’s Compensation Lien, 231 Mich App 556, 563; 591 NW2d 221 (1998). “A court may not inquire into the knowledge, motives, or methods of the Legislature,” Fowler v Doan, 261 Mich App 595, 599; 683 NW2d 682 (2004), and may not construe a statute on the basis of a policy decision different from that chosen by the Legislature, Robertson v Daimler-Chrysler Corp, 465 Mich 732, 752; 641 NW2d 567 (2002).