Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  May 13, 2011                                                                      Robert P. Young, Jr.,
                                                                                              Chief Justice

  140670                                                                            Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
                                                                                        Mary Beth Kelly
  CHRISTOPHER L. EVANS,                                                                 Brian K. Zahra,
           Plaintiff-Appellant,                                                                    Justices

  v                                                      SC: 140670
                                                         COA: 288546
                                                         Wayne CC: 08-109953-CZ
  GROSSE POINTE PUBLIC SCHOOL SYSTEM,
            Defendant-Appellee.

  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  September 15, 2010. The application for leave to appeal the January 19, 2010 judgment
  of the Court of Appeals is DENIED, because we are no longer persuaded that the
  questions presented should be reviewed by this Court.

        MARKMAN, J. (concurring).

       I concur in the order, but write separately to respond to the dissent’s assertion that
  “MCR 2.105(J)(3) precludes the entry of summary disposition in favor of defendant.”
  MCR 2.105(J)(3) provides:

               An action shall not be dismissed for improper service of process
        unless the service failed to inform the defendant of the action within the
        time provided in these rules for service.

  Thus, MCR 2.105(J)(3) applies to “improper” service of process. Contrary to the dissent,
  I do not believe that it applies to a complete failure to serve process.

         Because defendant here is a public entity, MCR 2.105(G) governs how it may be
  legally served. This rule, which the dissent does not discuss, or even cite, identifies
  specific persons on whom service must be made in a suit against a public school district,
  and establishes two means by which to effect service. First, service may be made on one
  of the identified officers — “the president, secretary, treasurer,” or “an officer having
                                                                                          2

substantially the same duties.” MCR 2.105(G)(5) and (8). Alternatively, service may be
made by “serving a summons and a copy of the complaint with a person in charge of the
office of an officer on whom service may be made,” and “sending a summons and a copy
of the complaint by registered mail addressed to such officer at his or her office.” MCR
2.105(G)(8).

       Here, plaintiff proceeded by using the alternative method of service, and whether
he completed the first required step by “serving the person in charge of the office of an
officer” was disputed. A process server maintained that he served Janet Truance, the
executive assistant to defendant’s superintendant, with the summons and a copy of the
complaint. Truance, however, despite specifically signing an “acknowledgement of
service,” claimed that she was handed a copy of the complaint only. Following an
evidentiary hearing, the trial court credited Truance’s account. Thus, service failed, and
the court granted defendant’s motion for summary disposition, and the Court of Appeals
affirmed.

        In my judgment, the trial court’s determination that plaintiff did not receive the
summons was clearly erroneous. Truance’s signed acknowledgement constituted “proof
of service” — a “written acknowledgment of receipt of a summons and a copy of the
complaint, dated and signed by the person authorized under this act to receive them.”
MCL 600.1910(1)(a); MCR 2.104(A)(1). However, despite this error, the lower courts
still reached the right result because there is no question that plaintiff did not even
attempt to complete the second step of the alternative process by “sending a summons
and a copy of the complaint by registered mail addressed to [the superintendent] at his or
her office.” MCR 2.105(G)(8). Clearly, both requirements of this provision are
necessary to constitute personal service on the public officer.

        Accordingly, the question in this case is whether MCR 2.105(J)(3), which applies
to “improper service of process,” excuses plaintiff’s failure to serve process at all
pursuant to MCR 2.105(G)(8). The answer to this question is clear, in my judgment:
“MCR 2.105(J)(3) is not applicable . . . where the question is not one of defects in the
manner of service, but rather a complete failure of service of process.” Holliday v
Townley, 189 Mich App 424, 425-426 (1991). The dissent may believe that “defendant
got all the notice it needed,” but the governing court rule instructs us on this matter, not
the personal perspective of a judge.

       MARILYN KELLY, J. (dissenting).

       I respectfully dissent from the Court’s order denying plaintiff’s application for
leave to appeal. I believe it was error for the trial court to grant defendant’s motion for
summary disposition. Accordingly, I would reinstate plaintiff’s claim.
                                                                                         3

       Plaintiff sued defendant alleging that defendant discharged him from his job in
violation of the Persons with Disabilities Civil Rights Act.1 Romeo District Court Officer
Thomas Urban made service of process on Janet Truance, the executive assistant to
defendant’s superintendent. Urban maintained that he served a summons and a
complaint. Truance claimed that she received only the complaint. Truance further
claimed that this was the first time she had been served with process on behalf of
defendant. In any event, she signed an acknowledgement of service, acknowledging
receipt of a summons and a complaint. However, she claimed that she did not read the
acknowledgement and that she was told she was signing a document showing receipt of
the papers she was handed.

        Following an evidentiary hearing, the trial judge concluded that Truance’s account
of her receipt of the papers was more credible than that of Urban. Thus, since there was
no effective service of process and the statute of limitations had expired, the trial court
granted defendant’s motion for summary disposition. The Court of Appeals affirmed the
trial court.2 We granted plaintiff’s application for leave to appeal.3

       Plaintiff argues that MCR 2.105(J)(3) precludes dismissal of his suit. That court
rule provides that “[a]n action shall not be dismissed for improper service of process
unless the service failed to inform the defendant of the action within the time provided in
these rules for service.” Here, there is no dispute that service of the complaint was
timely. Rather, the question is whether plaintiff’s service, assuming it was deficient for




1
    MCL 37.1101 et seq.
2
  Evans v Grosse Pointe Pub Sch Sys (On Reconsideration), unpublished opinion per
curiam of the Court of Appeals, issued January 19, 2010 (Docket No. 288546).
3
    488 Mich 861 (2010).
                                                                                                                4

failure to include a summons, failed to inform defendant of the action against it.4

        I believe that defendant had sufficient notice of the action against it by virtue of
plaintiff’s complaint. It is undisputed that the complaint adequately stated the basis for
the trial court’s jurisdiction, the factual basis for plaintiff’s claim, and included a demand
for relief. In terms of substance, a summons is different from a complaint in that it
indicates the time within which the defendant is required to answer or take other action.
It also includes a notice that, if the defendant fails to answer or take other action within
the time allowed, judgment may be entered against the defendant for the relief demanded
in the complaint.5

       Defendant’s attorney acted promptly to answer and defend. So, as a practical
matter, the service made on defendant informed it of the action within the time provided
in the court rules. Even if no summons was served, it cannot be said that defendant was
deprived of knowledge of the action against it. Thus, I believe that MCR 2.105(J)(3)
precludes the entry of summary disposition in favor of defendant.

        For these reasons, I would reinstate plaintiff’s claim.

        CAVANAGH, J., joins the statement of MARILYN KELLY, J.

        HATHAWAY, J., would reverse the judgment of the Court of Appeals.




4
  My concurring colleague believes that plaintiff’s effort to serve process amounted to a
“complete failure.” From this conclusion, he cites Holliday v Townley, 189 Mich App
424 (1991), as authority for the proposition that MCR 2.105(J)(3) is inapplicable.
Although I believe Holliday was incorrectly decided, I need not reach its applicability to
this case. I do not believe that failure to include a summons constitutes a complete
failure of service of process. Nor does the failure to serve a summons and complaint by
registered mail necessarily constitute a complete failure. At a minimum, in this case,
plaintiff did serve defendant with a complaint. A complete failure would suggest that
plaintiff failed to serve any documents that timely informed defendant of the action.
Moreover, even if Holliday did apply, this Court is not bound by a decision of the Court
of Appeals.
5
    See MCR 2.102(B)(10) and (11).



                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          May 13, 2011                        _________________________________________
         t0510                                                                Clerk
