Hill v. Frawley , 155 Mich. App. 611 ( 1986 )

155 Mich. App. 611 (1986) 400 N.W.2d 328

HILL
v.
FRAWLEY

Docket No. 88136.

Michigan Court of Appeals.

Decided October 21, 1986.

Samuel M. Hill, in propria persona.

Fraser, Trebilcock, Davis & Foster, P.C. (by C. Mark Hoover), for defendant.

Before: DANHOF, C.J., and D.E. HOLBROOK, JR., and M.E. DODGE,^[*] JJ.

M.E. DODGE, J.

Plaintiff filed his complaint on August 13, 1985, alleging legal malpractice by defendant. Plaintiff attempted to serve defendant by certified mail on August 15, 1985, but failed to enclose a copy of the complaint. Service was attempted again by registered mail, return receipt requested, on August 19, 1985, but someone other than defendant, who was on vacation, signed the return receipt. Defendant moved for summary disposition pursuant to MCR 2.116(C)(2), insufficient process, and MCR 2.116(C)(3), insufficient service of process, on September 5, 1985. Defendant argued that the service did not comply with MCR 2.105(A)(2) because he did not sign for the letter. The trial court granted defendant's motion on September 25, 1985. We reverse and remand for further proceedings.

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. See Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950); Krueger v Williams, 410 Mich 144, 156-158; 300 NW2d 910 (1981), app dis 452 US 956; 101 S Ct 3102; 69 L Ed 2d 967 (1981).

This constitutional precept has been included in a new section of the Michigan Court Rules, MCR 2.105(J)(3), which states: "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." Apparently, the time limit referred to is the 182-day period after which a summons expires. MCR 2.102(D). The use of "shall not" in the rule indicates that it is mandatory. Thus, if a defendant actually receives a copy of the summons and complaint within the permitted time, he cannot have the action dismissed on the ground that the manner of service contravenes the rules. See generally, 1 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 105-106.

In the instant case, plaintiff's manner of service notified defendant of the pendency of the action. Although defendant did not sign the return receipt as prescribed in MCR 2.105(A)(2), defendant acknowledged receiving the summons and complaint by retaining counsel and filing a summary disposition motion. Thus, plaintiff's service was as effective as if defendant had signed the receipt. Arguably, defendant's signature on a return receipt is more a part of proof of service than of service itself, and failure to file a proof of service does not affect the validity of the service. MCR 2.104(B); MCL 600.1910(3); MSA 27A.1910(3).

MCR 2.105(J)(3) clashes with some of the service-of-process rules, but when the manner actually used satisfies constitutional due process requirements by giving a defendant sufficient notice, as in the instant case, dismissal is neither warranted nor allowed by the rule. While dismissal, or other sanctions, might be appropriate in some cases, this is not such a case. See Martin, Dean & Webster, supra.

Accordingly, we reverse the grant of summary disposition and remand for further proceedings.

Plaintiff's motion for summary disposition was never heard by the trial court. Inasmuch as the trial court never reached the merits of plaintiff's legal malpractice claim and never reduced it to judgment, those issues are not properly before us, but will presumably be considered in any further proceedings.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.