                          STATE OF MICHIGAN

                           COURT OF APPEALS



RALPH BANKSTON,                                                     UNPUBLISHED
                                                                    August 16, 2018
               Plaintiff-Appellant,

v                                                                   No. 338531
                                                                    Genesee Circuit Court
DR. AVERY JACKSON,                                                  LC No. 16-107095-NI

               Defendant-Appellee.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

       Plaintiff appeals as of right an order granting defendant’s motion to set aside a default
and default judgment, and dismissing this medical malpractice case with prejudice. We affirm.

       This action arises out of back surgeries performed on plaintiff at Genesys Hospital by
defendant, a neurosurgeon, on February 20, 2014 and February 25, 2014.

        On June 9, 2016, plaintiff filed this medical malpractice action. On October 25, 2016,
after defendant failed to respond to the summons and complaint, plaintiff filed a request for entry
of a default. Attached to the request was a copy of a certified mail receipt showing that the
summons and a copy of the complaint were sent to the main address for Genesys Hospital, 1
Genesys Parkway in Grand Blanc, and were received on August 3, 2016. On October 28, 2016,
the default was entered. On November 18, 2016, plaintiff filed a motion for entry of a default
judgment in the amount of $125,000. On December 12, 2016, the trial court entered a default
judgment against defendant in the amount of $125,000.

        On January 9, 2017, defendant filed a motion to set aside the default and default
judgment, arguing that he was never served with the summons and complaint. The summons
and complaint were sent to 1 Genesys Parkway, which was not defendant’s office or residential
address. And the certified mail receipt was signed by an employee of Genesys Hospital, Mike
Wagner, not defendant. Further, defendant noted, plaintiff had previously sent a notice of intent
to file a complaint to defendant’s office, located on the Genesys Hospital campus at 4620
Genesys Parkway, which defendant received. Defendant argued that plaintiff deliberately sent
the summons and complaint to the 1 Genesys Parkway address, despite knowing that defendant’s
professional address was 4620 Genesys Parkway, so that defendant could not timely respond to
the lawsuit. Thus, defendant argued, his motion should be granted.


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        Plaintiff responded to defendant’s motion to set aside the default and default judgment,
arguing that the summons and complaint were properly served on defendant because they were
delivered to an intraoffice mailbox belonging to defendant on the campus of Genesys Hospital.
Plaintiff requested an evidentiary hearing to determine whether defendant actually received the
summons and complaint.

        Defendant filed a reply to plaintiff’s response, arguing that he was not properly served
with process so all subsequent proceedings were void. Further, the two-year statute of
limitations expired on August 20, 2016 and, because the summons expired on September 8, 2016
without proper service, plaintiff’s complaint must be dismissed with prejudice.

       Following a hearing on defendant’s motion, an evidentiary hearing was conducted on the
issue whether defendant was properly served. At the evidentiary hearing, Wagner testified that
he worked at Genesys Hospital and was responsible for signing certified mail receipt forms.
Wagner signed the certified mail receipt form for the summons and complaint at issue, and
agreed that the receipt indicated that it had been received on August 3, 2016.

       Sandra Eder, Genesys Hospital’s mail clerk, testified that she frequently delivered mail to
defendant’s intraoffice mailbox, which was located in the doctor’s lounge on the first floor of the
hospital. Eder did not specifically remember placing the summons and complaint in defendant’s
mailbox, but testified that she would have been the person who delivered it if it had been
received by the hospital. Eder stated that the mailboxes were simply unlocked drawers with each
individual doctor’s name on the front; they were not the same as an assigned post office box,
which would be locked. Eder agreed that anyone could take mail from the mailboxes because
they were not locked.

        Lisa O’Connor, defendant’s office manager, testified that she received a copy of the
notice of intent to file a complaint, as well as a copy of the default judgment, but never received
the summons and complaint. O’Connor was responsible for collecting mail from defendant’s
mailbox in the doctor’s lounge, but testified that that mailbox was generally only used for
intraoffice communications.

        Colleen Dumsa, an agent employed by defendant’s medical malpractice insurance
provider, Coverys, testified that she received a copy of plaintiff’s notice of intent to file a
complaint. Dumsa was aware of the statute of limitations for filing a medical malpractice
complaint, and waited for the summons and complaint to be sent to Coverys. The statute of
limitations for filing a complaint expired, and Dumsa had not received the summons and
complaint so she closed the file pertaining to plaintiff’s claim.

       Following the evidentiary hearing plaintiff filed a supplemental response to defendant’s
motion, arguing that the manner in which the summons and complaint were served was
“reasonably calculated to apprise [defendant] of the pendency of the action.” Further, plaintiff
claimed, the statute of limitations was tolled when the complaint was filed and a copy of it was
served on defendant.

       Defendant filed a reply to plaintiff’s supplemental response, arguing that he was “never
served with the Summons and Complaint either personally or by registered or certified mail,

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return receipt requested, and delivery restricted to the addressee, as required by MCR 2.105.”
Accordingly, because the statute of limitations had expired, the case must be dismissed with
prejudice.

        On April 24, 2017, the trial court granted defendant’s motion to set aside the default and
default judgment, concluding that plaintiff failed to properly serve defendant with the summons
and complaint, and that defendant did not have actual notice of the lawsuit. The trial court noted
that there was no definite proof that anyone employed by defendant had picked up the summons
and complaint from defendant’s mailbox in the doctor’s lounge, or that the summons and
complaint had been properly delivered to defendant’s mailbox in the first place. The trial court
observed that both plaintiff and defendant seemed to agree that “the applicable rule pertaining to
service would require that [defendant] be served at his office and by mailing [via] restricted
delivery,” but that plaintiff had not personally served defendant or utilized a certified, restricted
mail delivery service. The trial court noted:
       This is why we have rules about service. This is why we demand the definiteness
       of a signature when a lawsuit is served by mail. This is why it’s spelled out in the
       court rules . . . precisely for things like this that, well, wait a second, the ma[il]
       guy picked it up, then the mail lady got it, then she put it in his—you know, he
       probably got it . . . . But I think that [defendant] didn’t have actual notice.

                                              * * *

       I’m not thrilled with it, but that’s the court’s decision. There was no service. The
       default is set aside. The default judgment is set aside, and it seems to me that the
       dismissal that I have to enter is a dismissal with prejudice because the statute of
       limitations, although there was 75 days left and you can get tolling by service,
       okay, even if service is defective. I’m not finding that it was defective. I’m
       finding there wasn’t any [service], and you can’t toll with no service. You can
       toll with defective service, but you can’t toll with no service.

Accordingly, the trial court dismissed the case with prejudice. This appeal followed.

      Plaintiff argues that defendant had sufficient notice of this lawsuit because the summons
and complaint were delivered to defendant’s mailbox at the hospital where defendant worked.
We disagree.

         “A trial court’s decision regarding a motion to set aside a default judgment is reviewed
for an abuse of discretion.” Lawrence M Clarke, Inc v Richco Const, Inc, 489 Mich 265, 272;
803 NW2d 151 (2011). An abuse of discretion occurs when the trial court “reaches a decision
that falls outside the range of principled outcomes.” Huntington Nat’l Bank v Ristich, 292 Mich
App 376, 383; 808 NW2d 511 (2011). We also review de novo the summary dismissal of a case
on the ground that it is barred by the statute of limitations. Jackson v Detroit Med Ctr, 278 Mich
App 532, 539; 753 NW2d 635 (2008).

       MCR 2.105, which governs how process may be served, states that a plaintiff may serve a
defendant with process in the following ways:


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       (A) Individuals. Process may be served on a resident or nonresident individual
       by

              (1) delivering a summons and a copy of the complaint to the defendant
       personally; or

               (2) sending a summons and a copy of the complaint by registered or
       certified mail, return receipt requested, and delivery restricted to the addressee.
       Service is made when the defendant acknowledges receipt of the mail. A copy of
       the return receipt signed by the defendant must be attached to proof showing
       service under subrule (A)(2).

MCR 2.105(H)(1) also provides that “[s]ervice of process on a defendant may be made by
serving a summons and a copy of the complaint on an agent authorized by written appointment
or by law to receive service of process.” MCR 2.104(A)(1) provides the requirements for a
proper proof of service, stating in relevant part that proof of service may be made by “written
acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by
the person to whom the service is directed or by a person authorized under these rules to receive
the service of process[.]”
        In this case, the certified mail return receipt card indicates that the documents were sent
by certified mail to 1 Genesys Parkway, and delivery was not restricted to defendant. MCR
2.105(A)(2) restricts certified mail delivery to the specific defendant named in the lawsuit to
avoid disputes regarding whether a defendant was actually served or refused service. See
Bullington v Corbell, 293 Mich App 549, 557; 809 NW2d 657 (2011). Further, the hospital
employee who signed the certified mail receipt may have been an agent for the hospital, but there
was no evidence that he was “an agent authorized by written appointment or by law to receive
service of process” on behalf of defendant. MCR 2.105(H)(1).

        Plaintiff argues that the trial court abused its discretion in granting defendant’s motion to
set aside the default and default judgment, despite the fact that defendant was not served with
process in accordance with MCR 2.105, because process may be served in any manner that is
calculated to apprise a defendant of the pendency of the action. In support of this assertion,
plaintiff cites to Krueger v Williams, 410 Mich 144; 300 NW2d 910 (1981), a case in which our
Supreme Court stated that “[d]ue process requirements are satisfied if the method of imparting
notice is reasonably calculated under all the circumstances to afford notice.” Id. at 165.
Plaintiff’s argument is unpersuasive. In Krueger, the plaintiff could not locate the defendant in
order to effect service of process despite diligent efforts in that regard, including hiring an
investigator. Id. at 153. The plaintiff then sought approval from the trial court to allow
substituted service upon the defendant by service on the defendant’s liability insurer. Id. The
trial court refused the request, but our Supreme Court held that, under the circumstance of that
case, constructive service was permissible. Id. at 164. The Court noted that: “A truly diligent
search for an absentee defendant is absolutely necessary to supply a fair foundation for and
legitimacy to the ordering of substituted service.” Id. at 168. Clearly, then, the holding in
Krueger does not apply to the facts of this case. That is, plaintiff was not seeking an order for
substituted service because of an absentee defendant. Plaintiff knew where defendant was
located—in his office at 4620 Genesys Parkway.

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        This Court has explained “that service-of-process rules are intended to satisfy the due
process requirement that a defendant be informed of the pendency of an action by the best means
available, by methods reasonably calculated to give a defendant actual notice of the proceeding
and an opportunity to be heard and to present objections or defenses.” Bunner v Blow-Rite
Insulation Co, 162 Mich App 669, 673-674; 413 NW2d 474 (1987). Likewise, MCR 2.105(J)(1)
provides:
       Provisions for service of process contained in these rules are intended to satisfy
       the due process requirement that a defendant be informed of an action by the best
       means available under the circumstances.

In this case, plaintiff wholly failed to employ either the best means available or methods
reasonably calculated to give defendant actual notice of the lawsuit. The summons and
complaint should have been mailed to defendant’s professional address at 4620 Genesys
Parkway by registered or certified mail, return receipt requested, with delivery restricted to
defendant. Plaintiff had mailed the notice of intent to this address and, thus, clearly knew it was
defendant’s proper address. Accordingly, we agree with the trial court that defendant was not
properly served.

       When a defendant is not personally notified of an action, a trial court may grant relief
from a default judgment under MCR 2.612(B), which provides:
       (B) Defendant Not Personally Notified. A defendant over whom personal
       jurisdiction was necessary and acquired, but who did not in fact have knowledge
       of the pendency of the action, may enter an appearance within 1 year after final
       judgment, and if the defendant shows reason justifying relief from the judgment
       and innocent third persons will not be prejudiced, the court may relieve the
       defendant from the judgment, order, or proceedings . . . .

To be entitled to relief under MCR 2.612(B), defendant was required to show that he did not
have actual knowledge of the pending action. See Lawrence M Clarke, 489 Mich at 275-276.

        On appeal, plaintiff argues that there was a question of fact as to whether defendant
actually received the summons and complaint in his mailbox located in the physician’s lounge at
Genesys Hospital and, thus, had actual knowledge of the pending lawsuit. We cannot agree.
Defendant filed an affidavit in the trial court in support of his motion to set aside the default and
default judgment stating that he had no knowledge that a complaint was filed against him until he
received a copy of the default judgment in December 2016. Defendant also testified at the
evidentiary hearing that he had received no notice, by any means, of this lawsuit until he
received the default judgment in December 2016. Defendant’s testimony that he had no actual
knowledge that this action was pending against him was unrefuted by any evidence to the
contrary. Plaintiff merely claims that defendant should have had knowledge of the action
because the summons and complaint were sent to the hospital where defendant works; they were
signed for by a hospital employee; and then they were possibly delivered by the hospital’s mail
clerk to defendant’s unlocked drawer in the physician’s lounge where some member of
defendant’s staff might have retrieved them. Clearly, plaintiff’s claim rests entirely on
speculation and conjecture. As discussed above, plaintiff’s “attempt” to serve defendant was

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inadequate and not reasonably calculated to provide defendant with actual knowledge of this
lawsuit; thus, defendant was entitled to relief under MCR 2.612(B). Accordingly, the trial court
did not abuse its discretion by granting defendant’s motion to set aside the default and default
judgment. See Huntington Nat’l Bank, 292 Mich App at 383.

        Next, plaintiff argues that his case should not have been dismissed because the statute of
limitations was tolled “during the time the complaint was served at [defendant’s] box at Genesys
Hospital prior to defendant filing its [sic] motions[.]” We disagree.

        The statute of limitations for a medical malpractice action is two years. Jackson, 278
Mich App at 541. Plaintiff and defendant agree that as of June 9, 2016, the date on which
plaintiff filed his complaint, there were 75 days left in the two-year statute of limitations period.
Plaintiff argues that the statute of limitations period was tolled as of August 3, 2016, the date that
is stamped on the certified mail receipt form for the summons and complaint delivered to
Genesys Hospital. The tolling of statutes of limitations is governed by MCL 600.5856, which
states:
       The statutes of limitations or repose are tolled . . . . :

       (a) At the time the complaint is filed, if a copy of the summons and complaint are
       served on the defendant within the time set forth in the supreme court rules.

As discussed above, however, the summons and complaint were not “served on” defendant
before the summons expired. MCL 600.5856(a). Therefore, the statute of limitations was not
tolled and, as a result, the statute of limitations expired without proper service of process being
effected upon defendant. “[I]f the statute of limitations has already expired, the case must be
dismissed with prejudice.” Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 80; 869
NW2d 213 (2015). Consequently, the trial court properly dismissed plaintiff’s case with
prejudice.

       Affirmed. Defendant is entitled to costs as the prevailing party. See MCR 7.219(A).



                                                                    /s/ Brock A. Swartzle
                                                                    /s/ Mark J. Cavanagh
                                                                    /s/ Michael J. Kelly




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