Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED FEBRUARY 6, 2007 

KIM SAFFIAN, 

Plaintiff-Appellee, 

v No. 129263 

ROBERT R. SIMMONS, D.D.S., 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

PER CURIAM. 

The first question presented in this dental malpractice case is whether 

defendant, who chose not to respond to a summons and complaint because he 

believed it was accompanied by a technically deficient affidavit of merit under 

MCL 600.2912d(1), could be defaulted. The second question is, if the default was 

properly entered, did the trial court abuse its discretion under MCR 2.603(D)(1) in 

not setting it aside. The trial court and the Court of Appeals concluded that 

defendant was required to answer or otherwise timely respond to the complaint, 

notwithstanding the allegedly defective affidavit of merit and, thus, defendant had 

been properly defaulted. The Court of Appeals also concluded that the trial court 
did not abuse its discretion in refusing to set aside the default. We affirm the 

judgment of the Court of Appeals. 

I. Facts and Procedural History 

The Court of Appeals summarized the underlying facts as follows: 

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. 

On January 4, 2002, defendant filed an answer to the lawsuit. 

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. 

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 

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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. 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 NW2d 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. [Saffian v 

Simmons, 267 Mich App 297, 299-301; 704 NW2d 722 (2005).] 

The Court of Appeals affirmed in its published opinion. All three judges 

rejected defendant’s argument that he could not be defaulted because he was never 

obligated to answer the complaint. The majority held that the trial court did not 

abuse its discretion “in failing to set aside the default.” Id. at 307. Defendant 

applied for leave to appeal. We ordered oral argument on whether to grant 

defendant’s application or take other peremptory action. 475 Mich 861 (2006). 

II. Standard of Review 

This Court reviews de novo the grant or denial of a motion for summary 

disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). This 

Court also reviews de novo questions of statutory interpretation. Ayar v Foodland 

Distributors, 472 Mich 713, 715; 698 NW2d 875 (2005). “‘The primary goal of 

statutory interpretation is to give effect to the intent of the Legislature.’” Title 

Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 519; 676 NW2d 207 (2004) 

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(citation omitted). In so doing, we examine the language of the statute itself. “If 

the statute is unambiguous it must be enforced as written.” Id. Review of a trial 

court’s decision on a motion to set aside a default or a default judgment is for a 

clear abuse of discretion. Zaiter v Riverfront Complex, Ltd, 463 Mich 544, 552; 

620 NW2d 646 (2001). The determination that a trial court abused its discretion 

“‘involves far more than a difference in judicial opinion.’” Gilbert v 

DaimlerChrysler Corp, 470 Mich 749, 761-762; 685 NW2d 391 (2004) (citation 

omitted). Rather, an abuse of discretion occurs only when the trial court’s 

decision is outside the range of reasonable and principled outcomes. Maldonado v 

Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). 

III. Analysis 

“A civil action for malpractice may be maintained against any person 

professing or holding himself out to be a member of a state licensed profession.” 

MCL 600.2912(1). MCL 600.2912e(1) provides that a defendant in a medical 

malpractice action “shall” answer the complaint within 21 days after the plaintiff 

has filed “an affidavit in compliance with section 2912d.” Similarly, MCR 

2.108(A)(6) states that a defendant must answer within 21 days after being served 

with the affidavit “required by MCL 600.2912d.” 

Importantly, nothing in either MCL 600.2912e(1) or MCR 2.108(A)(6) 

authorizes a defendant to determine unilaterally whether the plaintiff’s affidavit of 

merit satisfies the requirements of MCL 600.2912d. As the Court of Appeals 

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majority pointed out in ruling for plaintiff, when an affidavit is filed, it is 

presumed valid. It is only in subsequent judicial proceedings that the presumption 

can be rebutted. As is evident, no such presumption arises when no affidavit is 

filed. 

Judge Zahra in his partial concurrence, in discussing the statute and the 

court rule, also pointed out that these provisions “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.” Saffian, supra at 

312 (Zahra, P.J., concurring in part and dissenting in part). He continued by 

reinforcing the majority’s point that it is the court’s province to determine the 

sufficiency of pleadings, not a defendant’s. 

In response to these arguments, defendant counters that Scarsella v Pollak, 

461 Mich 547, 550; 607 NW2d 711 (2000), can only be interpreted to provide 

that, when the affidavit of merit is technically deficient, the action is never 

“commenced” and, thus, no duty to answer the complaint arises. Accordingly, he 

concludes that any default entered in that circumstance is void ab initio. 

We believe that defendant misunderstands Scarsella. In Scarsella, supra at 

550, we concluded that a medical malpractice complaint not accompanied by an 

affidavit of merit does not “commence” a medical malpractice cause of action and 

thus the defendant need not file an answer to preclude a default. Scarsella did not 

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address the problem of a defective affidavit of merit. In that situation, as the Court 

of Appeals pointed out, the defendant must file an answer to preclude the entry of 

a default.1 

Further, this more orderly process of honoring the presumption of the 

validity of pleadings, requiring an answer, and then allowing the defendant to 

challenge the affidavit reduces the chaotic uncertainty that allowing the defendant 

to decline to answer would introduce. Finally, this rule advances the efficient 

administration of justice because to allow defendants to nitpick plaintiffs’ 

affidavits and, upon discovering an imperfection, to decline to answer surely leads, 

as it did here, to challenged default judgments and the hearings those entail. On 

the other hand, no such hearings are necessitated if the procedure is to require an 

answer and then a motion by the defendant to challenge the affidavit. This 

approach will conserve judicial resources and is advisable for that reason. 

Having determined that defendant could not be relieved of his duty to 

respond to plaintiff’s complaint, we now address whether defendant’s default 

should have been set aside. MCR 2.603(D)(1) establishes that, to set aside a 

default, a defendant must demonstrate both good cause, i.e., a reasonable excuse 

1

 Further, defendant’s reliance on White, supra, is also misplaced. In White, 

the Court of Appeals held that where the plaintiff failed to file any affidavit of 

merit, the defendant had no obligation to respond. White then is harmonious with 

Scarsella and our holding in this case. 

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for the failure to answer, and a meritorious defense. Alken-Ziegler, Inc v 

Waterbury Headers Corp, 461 Mich 219, 229; 600 NW2d 638 (1999). 

In his motion to set aside the default, defendant claimed that his employee’s 

unsuccessful attempt to fax a copy of the complaint to his insurer constituted good 

cause. The trial court initially accepted defendant’s claim as good cause for his 

failure to answer the complaint. Later factual development caused the trial court 

to reconsider this determination. Essentially, the trial court ruled that, if it had 

known at the time of defendant’s motion to set aside the default that no longdistance telephone calls were made from defendant’s office on the date the fax 

was allegedly sent, it never would have accepted defendant’s excuse as good cause 

for failing to answer the complaint. 

Defendant argues, following the reasoning of Judge Zahra’s partial dissent, 

that a remand to the trial court is necessary because the trial court never held an 

evidentiary hearing regarding whether defendant fabricated his excuse for failing 

to answer the complaint. Although defaults are not favored, neither is setting 

aside defaults. Alken-Ziegler, supra at 229. As the defaulting party, the burden of 

demonstrating good cause and a meritorious defense to set aside the default fell on 

defendant. MCR 2.603(D)(1). Defendant, however, presented no evidence 

whatsoever supporting his version of the events. Defendant’s employee, who 

allegedly faxed the complaint to defendant’s insurer, offered no explanation for 

the lack of a long-distance telephone call on defendant’s phone records for the 

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relevant date. Neither defendant nor his employee did anything to follow up on 

the allegedly attempted fax, such as calling the insurer to confirm that the 

documents had been received and that an answer would be filed. 

Although Judge Zahra listed several possible explanations, other than fraud 

or fabrication, for the lack of a record of a long-distance telephone call made from 

defendant’s business on the day the fax was allegedly sent, defendant never made 

any such argument to the trial court. When presented with plaintiff’s evidence, 

defendant simply gave no explanation. Because defendant failed to offer any 

evidence or explanation to rebut the reasonable inference that no fax was sent on 

the day in question, the trial court was not required to hold an evidentiary hearing 

to determine whether defendant defrauded the court. Rather, in ruling on 

defendant’s motion to set aside the default, and on plaintiff’s motion for 

reconsideration, the trial court had discretion to determine whether defendant’s 

excuse for failing to timely answer the complaint was reasonable. In light of 

defendant’s failure to present any explanation for the lack of a telephone record of 

the alleged fax, the trial court’s determination that defendant’s excuse was not 

reasonable fell within the range of principled outcomes. We therefore cannot say 

that the trial court abused its discretion in reinstating the default against defendant. 

IV. Conclusion 

We hold that, where an affidavit of merit is filed with a medical malpractice 

complaint, a defendant must timely answer or otherwise file some responsive 

pleading to the complaint, or else be subject to a default. A defendant’s unilateral 

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belief that the affidavit of merit does not conform to the requirements of MCL 

600.2912d does not constitute “good cause” for failing to respond timely to a 

medical malpractice complaint, and thus is not a proper basis to challenge the 

entry of a default. 

In the present case, defendant claimed that some technical or mechanical 

error with his fax machine established good cause for his failure to respond timely 

to plaintiff’s complaint. Defendant, however, presented no evidence to support 

this claim. After further discovery, plaintiff proffered evidence to contradict 

defendant’s excuse, but defendant offered no contrary explanation. We hold that 

the trial court did not abuse its discretion by reinstating the default against 

defendant, and an evidentiary hearing on the issue of fraud or fabrication was not 

required. Accordingly, we affirm the judgment of the Court of Appeals upholding 

the entry of the default judgment against defendant. 

Affirmed. 

Clifford W. Taylor 

Michael F. Cavanagh 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Kelly, J. I concur in the result only. 

Marilyn Kelly 

Weaver, J. I would grant leave to appeal. 

Elizabeth A. Weaver 

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