Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 comp laint because he believed it was accompanied by a techni cally deficient affidavit of merit under MCL 600.2912d(1), could be defaulted. The second ques tion 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 an d the Court of App eals concluded that defendant was required to an swer or otherwise timely res pond to the complaint, notwithstanding the allegedl y defective affidavit of mer it and, thus, defendant had been properly defaulted. The Court of Ap peals also concluded that the trial courtdid not abuse its discretion in refusing to set aside th e 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, plaintif f filed suit alleging that defendant committed malpractice in performing a root canal. The complaint was accomp anied by an affidavit of merit signed by Mark Nearing, D.D.S., whose dental prac tice 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, defenda nt moved to set aside the default on the ground that defendant’s empl oyee faxed th e summons and complaint to defendant’s insu rance carrier, but that the fax was not received, and therefore the carrier did not forward the complaint to its counsel for response. Furthe r, 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 innocen t circumstances of a failed communication. The trial court g ranted defendant’s motion to set aside the default. On January 4, 2002, defendant fi led 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 th e 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. Th e trial court denied defendant’s motion for summary disposition, bu t granted plaintiff’s motion to reinstate the default. The trial cour t concluded that the motion to set aside the default had been improvidently granted and that plaintiff’s affidavit of merit, while technica lly deficient, was sufficient to commence the co mplaint. In its opinion and orde r, the court noted th at it earlier set aside the default on the basis of defendant’s representations that the fax of

2the summons and co mplaint was not received by defendant’s insurance carrier and the failure to tr y this case on the merits would result in manifest injustice to defendant. Howe ver, 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 fi eld 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 mer it with the compla int and, therefore, failed to commence a suit, h ere the affidavit was filed. Consequently, defendant was not relie ved 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 coul d not be defaulted b ecause he was never obligated to answer th e complaint. The ma jority 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 ord ered oral argument on whether to grant defendant’s application or take other perem ptory action. 475 Mich 861 (2006).
II. Standard of Review This Court reviews de novo the gran t 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 stat utory 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 Bu ren Co Treasurer, 469 Mich 516, 519; 676 NW2d 207 (2004)

3(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 asid e a default or a defau lt judgment is for a clear abuse of discretion. Zaiter v Riverfront Complex, Ltd , 463 Mich 544, 552; 620 NW2d 646 (2001). The determination th at a trial court abused its discretion “‘involves far more than a differen ce in judicial opinion.’” Gilbert v DaimlerChrysler Corp , 470 Mich 749, 761-762; 685 NW2d 391 (2004) (citation omitted). Rather, an abus e of discretion occurs onl y when the trial court’s decision is outside the range of reas onable 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 agai nst any person professing or holding himsel f 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 w ithin 21 days aft er the plaintiff has filed “an affidavit in compliance w ith 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 MC L 600.2912e(1) or MCR 2.108(A)(6) authorizes a defendant to de termine unilaterally whether the plaintiff’s affidavit of merit satisfies the requirements of MCL 600.2912d. As the Court of Appeals

4majority pointed out in ruling for plainti ff, when an affidavi t is filed, it is presumed valid. It is only in subsequent judicial proceedings that the presumption can be rebutted. As is ev ident, 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 ou t that these provisions “m erely identify the type of affidavit that, if filed with the complaint, brings about a defendant’s obligation to answer or otherwise file a responsi ve 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 po int that it is the court’s province to determine the sufficiency of pleadings, not a defendant’s.
In response to these argumen ts, 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 tech nically deficient, the action is never “commenced” and, thus, no du ty to answer the co mplaint 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 malp ractice complaint not accompanied by an affidavit of merit does not “commence” a me dical malpractice cause of action and thus the defendant need not file an answer to precl ude a default. Scarsella did not

5address the problem of a defectiv e 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 orderl y process of honoring the presumption of the validity of pleadings, requiri ng an answer, an d 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 defendant s to nitpick plaintiffs’ affidavits and, upon discoveri ng an imperfection, to decl ine to answer surely leads, as it did here, to challenged default judg ments and the hearings those entail. On the other hand, no such h earings 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 re lieved of his duty to respond to plaintiff’s complaint, we now address whether defendant’s default should have been set asid e. MCR 2.603(D)(1) establis hes that, to set aside a default, a defendant must demonstrate bot h 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 faile d 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.

6for 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 asid e the default, defendant claimed that his employee’s unsuccessful attempt to fax a copy of the comp laint to his insu rer constituted good cause. The trial court initially accepted d efendant’s claim as good cause for his failure to answer the complaint. Later factual development caused the trial court to reconsider this determination. Essentia lly, the trial court ruled that, if it had known at the time of defendant’s motion to set aside the default that no long

distance telephone calls were made from defendant’s office on the date the fax was allegedly sent, it never would have accepted defendant’s ex cuse as good cause for failing to answ er the complaint. Defendant argues, following the reasoni ng of Judge Zahra’s partial dissent, that a remand to the trial court is necess ary because the trial court never held an evidentiary hearing regardi ng whether defendant fabrica ted his excuse for failing to answer the compla int. Although d efaults 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 asid e the default fell on defendant. MCR 2.603(D)(1). Defen dant, however, p resented no evidence whatsoever supporting his version of th e events. Defendant’s employee, who allegedly faxed the complaint to defendant’s insurer, offered no explanation for the lack of a long-distan ce telephone call on defenda nt’s phone records for the

7relevant date. Neither defen dant nor his empl oyee did anything to follow up on the allegedly attempted fax, such as calling the insurer to confirm that the documents had been received and th at an answer would be filed. Although Judge Zahra listed several po ssible 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 se nt, defendant never made any such argument to the trial court. Wh en presented with pl aintiff’s evidence, defendant simply gave no explanation. Because defendant failed to offer any evidence or explanation to rebut the reas onable 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 defraude d the court. Rather, in ruling on defendant’s motion to set aside the d efault, and on plai ntiff’s motion for reconsideration, the trial court had discret ion to determine wh ether defendant’s excuse for failing to timel y answer the complaint was reasonable. In light of defendant’s failure to present any explanation for the lack of a te lephone record of the alleged fax, the trial court’s determin ation that defendant’s excuse was not reasonable fell within the ra nge of principled outcome s. 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 m erit is filed with a medical malpractice complaint, a defendant must timely answer or otherwise file some responsive pleading to the complaint, or else be subj ect to a default. A defendant’s unilateral

8belief that the affidavit of merit does not conform to the requirements of MCL 600.2912d does not constitute “good cause” for fa iling 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 claime d that some technical or mechanical error with his fax ma chine established good cause for his failure to respond timely to plaintiff’s complaint. Defendant, ho wever, presented no evidence to support this claim. After furth er discovery, plaintiff proffered evidence to contradict defendant’s excuse, but defendant offered no contrary explanati on. We hold that the trial court did not abuse its dis cretion by reinstating the default against defendant, and an evidentiary hearing on the issue of fraud or fabrication was not required. Accordingly, we affirm the judg ment of the Court of Appeals upholding the entry of the default ju dgment 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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