Apsey v. Memorial Hospital , 266 Mich. App. 666 ( 2005 )

702 N.W.2d 870 (2005) 266 Mich. App. 666

Sue H. APSEY and Robert Apsey, Jr., Plaintiffs-Appellants,
v.
MEMORIAL HOSPITAL, d/b/a Memorial Healthcare Center, Russell H. Tobe, D.O., James H. Deering, D.O., and James H. Deering, D.O., P.C., d/b/a Shiawassee Radiology Consultants, P.C., Defendants-Appellees.

Docket No. 251110.

Court of Appeals of Michigan.

Submitted April 6, 2005, at Lansing. Decided June 9, 2005, at 9:05 a.m. Released for Publication August 25, 2005.

Jeffery S. Zilinski, Burton, for Sue H. Apsey and Robert Apsey, Jr.

Cline, Cline, Griffin (by Glenn M. Simmington and Jose T. Brown), Flint, for Memorial Hospital.

Hackney Grover Hoover & Bean (by Randy J. Hackney and Loretta B. Subhi), East Lansing, for Russell H. Tobe, D.O.

Willingham & Coté, P.C. (by Ray Foresman, Michael W. Stephenson, and Matthew K. Payok), East Lansing, for James H. Deering, D.O.; and Shiawassee Radiology Consultants, P.C.

Linda M. Galante, Grosse Pointe Park, for the Michigan Trial Lawyers Association, amicus curiae.

Charfoos & Christensen, P.C. (by David R. Parker), Detroit, for the State Bar of Michigan Negligence Section and the State Bar of Michigan Elder Law Section, amici curiae.

Daniel W. Sherrick, Detroit, for International Union, UAW, amicus curiae.

Olsman, Mueller & James, P.C. (by Jules B. Olsman and Phyllis A. Figiel), Berkley, for Citizens for Better Care, amicus curiae.

The Googasian Firm, P.C. (by George A. Googasian and Dean M. Googasian), Bloomfield Hills, for the State of Bar of Michigan, amicus curiae.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Robert Welliver and Heather S. Meingast, Assistant Attorneys General, for the Department of Community Health, amicus curiae.

Kerr, Russell and Weber, P.L.C. (by Joanne Geha Swanson, Daniel J. Schulte, and Michael A. Sneyd), Detroit, for the Michigan State Medical Society, amicus curiae.

Maddin, Hauser, Wartell, Roth & Heller, P.C. (by Mark H. Fink), Southfield, for Michigan Defense Trial Counsel, amicus curiae.

Before: MARK J. CAVANAGH, P.J., and JANSEN and GAGE, JJ.

ON RECONSIDERATION

JANSEN, J.

Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right a circuit court order granting summary disposition for defendants, Memorial Hospital, doing business in Owosso as Memorial Healthcare Center; two of its practitioners, doctors Russell H. Tobe and James H. Deering; and the business entities under which they practice. We reverse and remand for further proceedings.

Plaintiffs commenced this action in November 2001, stating that Sue Apsey was admitted to Memorial Healthcare Center for an "exploratory laparotomy," which resulted in the removal of a large ovarian cyst. Various complications followed. Plaintiffs allege that misdiagnoses and errant reporting attendant to those complications caused Sue Apsey to become "septic," requiring several follow-up surgeries.

Plaintiffs' affidavit of merit was prepared in Pennsylvania, using a notary public of that state. A normal notarial seal appears on the document, and it is not disputed that plaintiffs initially provided no special certification to authenticate the credentials of the out-of-state notary public. Instead, plaintiffs provided that certification after the period of limitations had run on their cause of action. Defendants moved in the trial court for summary disposition with regard to plaintiffs' medical malpractice claims, citing M.C.L. §§ 600.2912d and 600.2102. In granting the motions, the court reasoned that the failure to provide the special certification was fatal to the notarization and, thus, that the affidavit itself was a nullity, rendering plaintiffs' complaint invalid.

At issue in this appeal is whether M.C.L. § 565.262, the general statute concerning notarial acts, governs affidavits of merit in medical malpractice cases, or whether the more demanding requirements of M.C.L. § 600.2102 apply. Plaintiffs contend that the trial court erred by granting defendants' motions for summary disposition and holding that an out-of-state affidavit of merit in a medical malpractice case not only must be notarized, but also must be accompanied by a certificate setting forth the notary's authority.

This Court reviews de novo a trial court's decision on a motion for summary disposition as a question of law. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003); Ardt v. Titan Ins. Co., 233 Mich.App. 685, 688, 593 N.W.2d 215 (1999). Statutory interpretation likewise presents a question of law, calling for review de novo. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003); Haworth, Inc. v. Wickes Mfg. Co., 210 Mich.App. 222, 227, 532 N.W.2d 903 (1995).

M.C.L. § 600.2912d(1) provides, in part:

[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness.... The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice....

Subsections 1(a) through (d) set forth the particulars to which the expert must attest. An affidavit for these purposes must be "confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Holmes v. Michigan Capital Med. Ctr., 242 Mich.App. 703, 711, 620 N.W.2d 319 (2000). In the medical malpractice context, a valid affidavit of merit must be filed with the complaint in order to commence an action and to toll the period of limitations. Scarsella v. Pollak, 461 Mich. 547, 552-553, 607 N.W.2d 711 (2000).

In this case, neither the need for an affidavit of merit nor the requirement that one be notarized is in dispute. The controversy, instead, concerns what constitutes a valid out-of-state notarization.

In 1924, our Supreme Court reiterated the legislative requirement that, if an affidavit submitted to a court is authenticated by an out-of-state notary public, in order for the court to consider the affidavit, the signature of the sister-state notary public must be certified by the clerk of the court of record in the county in which the affidavit was executed. In re Alston's Estate, 229 Mich. 478, 480-482, 201 N.W. 460 (1924). Similarly, M.C.L. § 600.2102, effective in 1963, states that "where by law the affidavit of any person residing in another state ... is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated...." M.C.L. § 600.2102(4) specifies that an affidavit taken in a sister state

may be taken before ... any notary public ... authorized by the laws of such state to administer oaths therein. The signature of such notary public ... shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.

This language closely mirrors that which was construed by our Supreme Court in In re Alston's Estate, supra at 481, 201 N.W. 460; see also Wallace v. Wallace, 23 Mich. App. 741, 744-745, 179 N.W.2d 699 (1970).

Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), M.C.L. § 565.261 et seq. "Notarial acts" are defined as "acts that the laws of this state authorize notaries public of this state to perform, including... taking proof of execution and acknowledgements of instruments, and attesting documents." M.C.L. § 565.262(a). The URAA provides that notarial acts performed in a sister state may function in this state as if performed by a Michigan notary public if performed by "[a] notary public authorized to perform notarial acts in the place in which the act is performed." M.C.L. § 565.262(a)(i). M.C.L. § 565.263(1) of the URAA provides:

If the notarial act is performed by any of the persons described in subdivisions (a) to (d) [sic] of section 2, other than a person authorized to perform notarial acts by the laws or regulations of a foreign country, the signature, rank or title and serial number, if any, of the person are sufficient proof of the authority of a holder of that rank or title to perform the act. Further proof of his authority is not required.

M.C.L. § 565.263(4) states that "[t]he signature and title of the person performing the act are prima facie evidence that he is a person with the designated title and that the signature is genuine."

If the present inquiry were to be decided on the basis of the URAA, the notarization of the affidavit in question would indisputably be valid. Plaintiffs' affidavit of merit bears the signature and notary seal of a Pennsylvania notary public. That status in another state carries over to this state, and the signature and the title are prima facie evidence of authenticity, M.C.L. § 565.263(4). But the signature and the notary seal do not satisfy the requirements set forth in M.C.L. § 600.2102(4). The question, then, is whether M.C.L. § 565.262 affects M.C.L. § 600.2102, and, if so, in what manner.

When this issue was initially raised before the trial court, only the applicability of M.C.L. § 600.2102 was argued. The court recognized the inflexibility of that statute and decided to grant summary disposition. In a subsequent hearing that the court treated as a motion for reconsideration, plaintiffs argued that M.C.L. § 565.262 should apply to the exclusion of M.C.L. § 600.2102. The court was not persuaded, and, without elaboration, stated that arguments concerning M.C.L. § 565.262 would not have changed its earlier decision.

Defendant Deering argues that the specific mention of affidavits in M.C.L. § 600.2102 indicates greater legislative specificity than the general mention of notarial acts in M.C.L. § 565.262. However, the general language of the latter is obviously a consequence of the statute covering acts performed in some cases by persons other than notaries public and coverage of notarial acts performed on documents other than affidavits. The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Haworth, supra at 227, 532 N.W.2d 903. Notaries public, either in-state or out-of-state, are expressly mentioned in M.C.L. § 565.262(a), along with the function of "attesting documents." Affidavits, and the role of the notary public in executing them, are obviously envisioned.

Both plaintiffs and defendants raise issues regarding the placement of the statutes. "[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in their natural and ordinary sense." Gross v. Gen. Motors Corp., 448 Mich. 147, 160, 528 N.W.2d 707 (1995) (emphasis added). It is well, then, to note the structural placement of the two statutory schemes.

The URAA appears among statutes governing conveyances of real property. The emphasis, then, is not on documents submitted to Michigan courts, but on documents that have potentially great legal significance in other contexts, e.g., memorializing agreements or recording conveyances and interests. However, contrary to defendants' contentions, we find that the URAA and its requirements are not limited to conveyances of real property.

M.C.L. § 600.2102 appears within the Revised Judicature Act, M.C.L. § 600.101 et seq., and retains its predecessor's language concerning affidavits "received in judicial proceedings," which our Supreme Court construed as strictly requiring that special certification accompany notarizations by out-of-state notaries public. In re Alston's Estate, supra at 481-482, 201 N.W. 460. Plaintiffs point out that this statute is sandwiched between provisions governing evidence and argue that it thus applies only when the affidavit in question is to be read into evidence. However, the statute itself sets forth what is required for a sister-state affidavit "to be read," not "to be read specifically into evidence." The Legislature is presumed to have intended the meaning it plainly expressed, Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). "Read" for this purpose means acknowledged and considered by the court, not necessarily read into evidence. See Berkery v. Wayne Circuit Judge, 82 Mich. 160, 167-168, 46 N.W. 436 (1890).

Thus, neither the provisions of the URAA, in particular M.C.L. § 565.262 and M.C.L. § 565.263, nor M.C.L. § 600.2102 are rendered inapplicable on the basis of structural placement. These statutes relate to authentication and share the common purpose of requiring verification for the authenticity of out-of-state notarial acts. As such, the statutes are in pari materia. Statutes that relate to the same subject or share a common purpose are in pari materia and must be read together as one law, even if each contains no reference to the other and they were enacted on different dates. State Treasurer v. Schuster, 456 Mich. 408, 417, 572 N.W.2d 628 (1998); Houghton Lake Area Tourism & Convention Bureau v. Wood, 255 Mich.App. 127, 146, 662 N.W.2d 758 (2003). And, statutes that have a common purpose should be read to harmonize with each other in furtherance of that purpose. Jennings v. Southwood, 446 Mich. 125, 136-137, 521 N.W.2d 230 (1994); Antrim Co. Treasurer v. Dep't of Treasury, 263 Mich.App. 474, 481, 688 N.W.2d 840 (2004). If two statutes lend themselves to a construction that avoids conflict, that construction should control. House Speaker v. State Administrative Bd., 441 Mich. 547, 568-569, 495 N.W.2d 539 (1993); Travelers Ins. v. U-Haul of Michigan, Inc., 235 Mich.App. 273, 280, 597 N.W.2d 235 (1999). "Where a specific statutory provision differs from a related general one, the specific one controls." Antrim, supra at 484, 688 N.W.2d 840, citing Gebhardt v. O'Rourke, 444 Mich. 535, 542-543, 510 N.W.2d 900 (1994).

The two statutes can be harmonized. The URAA provides in pertinent part, "Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state." M.C.L. § 565.268. The Legislature is charged with knowledge of existing laws on the same subject and is presumed to have considered the effect of new laws on all existing laws. Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993); Kalamazoo v. KTS Industries, Inc., 263 Mich.App. 23, 34, 687 N.W.2d 319 (2004). M.C.L. § 600.2102 is a law of this state that requires more specific recognition requirements for notarial acts authenticating an affidavit of a person residing in another state that is received in judicial proceedings; i.e., it requires that the signature of a notary public on an affidavit taken out of state "be certified by the clerk of any court of record in the county where such affidavit shall be taken, under seal of said court." As such, the URAA, enacted after M.C.L. § 600.2102, does not diminish or invalidate the more specific and more formal requirements of M.C.L. § 600.2102. Furthermore, this harmonious application of the URAA and M.C.L. § 600.2102 avoids conflict. See House Speaker, supra at 568-569, 495 N.W.2d 539; Travelers Ins., supra at 280, 597 N.W.2d 235.

For these reasons, we find that the more specific requirements of M.C.L. § 600.2102 of the Revised Judicature Act control over the general requirements of M.C.L. § 565.262 of the URAA. See Antrim, supra at 484, 688 N.W.2d 840, citing Gebhardt, supra at 542-543, 510 N.W.2d 900. In other words, M.C.L. § 565.262 governs notarial acts, including the execution of affidavits, in general, to which M.C.L. § 600.2102 adds a special certification requirement when the affidavit is to be read, meaning officially received and considered, by the judiciary.^[1] This special certification requirement of M.C.L. § 600.2102 is not diminished or invalidated by the subsequently enacted URAA. See M.C.L. § 565.268. Instead, M.C.L. § 565.268 allows for the statutes to be harmonized. As such, the special certification is a necessary part of an affidavit submitted to the court to meet the requirement of M.C.L. § 600.2912d(1).^[2]

Next, we must address the effect of plaintiffs' failure to properly authenticate the affidavit of merit, which is a failure that technically rendered the affidavit of merit defective. In Scarsella, the Supreme Court was faced with a complete failure to file an affidavit of merit. The Court left for later decisional development the question of the appropriate legal response when a "timely filed affidavit is inadequate or defective." Scarsella, supra at 553, 607 N.W.2d 711. Such decisional development from this Court indicates that, "whether the adjective used is `defective' or `grossly nonconforming' or `inadequate,'" where a plaintiff's affidavit failed to meet the applicable statutory standards, it "was defective and did not constitute an effective affidavit," and therefore failed to support a medical malpractice complaint for purposes of tolling the period of limitations. Geralds v. Munson Healthcare, 259 Mich.App. 225, 240, 673 N.W.2d 792 (2003). See also VandenBerg v. VandenBerg, 253 Mich.App. 658, 662, 660 N.W.2d 341 (2002) (unless a plaintiff has moved for a statutorily provided extension, the plaintiff may not file a medical malpractice complaint without an affidavit of merit, then cure that deficiency by filing the affidavit after the period of limitations has run). Consequently, a belatedly filed certification of an out-of-state notary public would not cure the defect in an otherwise timely complaint and affidavit.^[3]

Because of the injustice and inequity that could result from our determination on this issue of first impression, we will address whether the ramifications (a dismissal based on the claims being time barred) of our interpretation should be applied retroactively or prospectively. "`"The general rule is that judicial decisions are to be given complete retroactive effect...."'" Ousley v. McLaren, 264 Mich.App. 486, 493, 691 N.W.2d 817 (2004), quoting Lincoln v. Gen. Motors Corp., 461 Mich. 483, 491, 607 N.W.2d 73 (2000), quoting Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 240, 393 N.W.2d 847 (1986) (intermediate citation deleted).<sup>[4]</sup> "`[A] more flexible approach is warranted where injustice might result from full retroactivity.'" Gladych v. New Family Homes, Inc., 468 Mich. 594, 606, 664 N.W.2d 705 (2003), quoting Pohutski, supra at 696, 641 N.W.2d 219, citing Lindsey v. Harper Hosp., 455 Mich. 56, 68, 564 N.W.2d 861 (1997). Complete prospective application has been deemed appropriate for a decision that "decides an `"issue of first impression whose resolution was not clearly foreshadowed."'" Lindsey, supra at 68, 564 N.W.2d 861, quoting People v. Phillips, 416 Mich. 63, 68, 330 N.W.2d 366 (1982), quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).

In essence, the question before this Court is an issue of first impression whose resolution, because of the URAA, was not clearly foreshadowed. Our decision is based on a law, M.C.L. § 600.2102, requiring a special certification for out-of-state notarial acts, which law has been overlooked by practitioners in medical malpractice cases or, more likely, practitioners have been under the impression that the URAA, enacted subsequently to M.C.L. § 600.2102, was the applicable statute and that special certification was not required. Plaintiffs' counsel raised a concern at oral argument with regard to the significant effect this holding could have on medical malpractice cases in Michigan because a majority of affidavits of merit for medical malpractice cases come from out of state and practitioners have relied on the URAA validation requirements for the out-of-state notarial acts. Amici curiae have also raised concerns regarding practitioners' beliefs that the less restrictive URAA requirements for verification of notarial acts was sufficient verification and regarding the significant effect this decision would have on medical malpractice claims, which are in large part supported by affidavits of merit from out-of-state doctors.^[5] Apparently, there has been confusion in the legal community about whether the more relaxed standards of the URAA applied. In light of the apparent reliance on the URAA by the legal community, we believe that justice requires a prospective application. See Gladych, supra at 606, 664 N.W.2d 705. Retroactive application would result in the dismissal of a large number of otherwise meritorious medical malpractice claims. Our Supreme Court has recognized that "resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy." Riley v. Northland Geriatric Ctr. (After Remand), 431 Mich. 632, 644, 433 N.W.2d 787 (1988) (opinion by Griffin, J.). Fairness and public policy both support a prospective application because serious injustices could result from a retroactive application and prospective application of the ramifications for the failure to provide the M.C.L. § 600.2102(d) certification accomplishes a "maximum of justice" under the presented circumstances. Lindsey, supra at 68, 564 N.W.2d 861.

In the present case, equity also supports a deviation from the strict compliance with the statute of limitations because of understandable confusion regarding the applicable statute. Bryant v. Oakpointe Villa Nursing Ctr, Inc, 471 Mich. 411, 432, 684 N.W.2d 864 (2004); Ward v. Rooney-Gandy, 265 Mich.App. 515, 522 n. 4, 696 N.W.2d 64 (2005). In Bryant, supra at 432-433, 684 N.W.2d 864, our Supreme Court, in discussing why a medical malpractice claim that would typically be time barred should, instead, proceed, provided:

The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan.... Plaintiff's failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights....

* * *

Plaintiff has stated two claims that require expert testimony and therefore sound in medical malpractice. Although these claims were filed after the applicable period of limitations had run and would ordinarily be time-barred, the procedural features of this case dictate that plaintiff should be permitted to proceed with her medical malpractice claims....

Similarly, plaintiffs in the present case, apparently like a significant number of the bar of Michigan, were under the impression that meeting the requirements of the URAA was sufficient to verify an out-of-state notarial act on an affidavit of merit filed with the court to support a medical malpractice claim.^[6] Dismissal of plaintiffs' complaint in the present case, as in Ward, would be "fundamentally unfair and constitute[] an unjust technical forfeiture" of the cause of action. Ward, supra at 523, 696 N.W.2d 64. The equities in this case dictate that we find plaintiffs' claims are not time barred. But for the certification, plaintiffs' complaint would not have been dismissed. A sound affidavit of merit exists, the only problem being the failure to certify as required by M.C.L. § 600.2102(4) before the expiration of the period of limitations. The statutory purpose for medical malpractice affidavits of merit is to deter frivolous medical malpractice claims. Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 47, 594 N.W.2d 455 (1999). This purpose was served in the present case as defendants were put on timely notice of the claims with an affidavit of merit that met every requirement, except that the out-of-state notarial act had not been properly certified. As in Bryant, the "procedural features of this case dictate that plaintiff[s] should be permitted to proceed with [the] medical malpractice claims." Bryant, supra at 433, 684 N.W.2d 864. Thus, the equities also weigh in favor of plaintiffs' action not being barred by the statute of limitations.

For the above stated reasons, reversing the trial court's order granting defendants' motions for summary disposition and allowing plaintiffs' claims to proceed best serve justice and equity. Plaintiffs, in this case, have already presented the proper certification. With regard to all medical malpractice cases pending in which plaintiffs are not in compliance with M.C.L. § 600.2102(4), on the basis of justice and equity, plaintiffs can come into compliance by filing the proper certification. Furthermore, justice and equity also dictate a strict application from the date of this opinion. From the date of the issuance of this opinion, any affidavit of merit acknowledged by an out-of-state notary filed without the proper certification will not toll the period of limitations because the legal community is now on notice. To the extent plaintiffs and amici curiae raise further arguments regarding the certification process being outdated, potentially impossible in some states, etc., these questions are best left for the Legislature.^[7]

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

GAGE, J., concurred.

MARK J. CAVANAGH, P.J., (dissenting).

I respectfully dissent. After further review and consideration, I believe this case was wrongly decided and conclude that the affidavit of merit filed in this matter met the requirements of MCL 600.2912d(1).

M.C.L. § 600.2912d(1) requires the filing of an affidavit of merit with the complaint. To be valid, an affidavit must be confirmed by the oath or affirmation of the party making it, and it must be taken before a person having authority to administer the oath or affirmation. Holmes v. Michigan Capital Med. Ctr., 242 Mich.App. 703, 711, 620 N.W.2d 319 (2000). Pursuant to the Uniform Recognition of Acknowledgments Act (URAA), M.C.L. § 565.261 et seq., a notary public authorized under the laws by which he or she acts is authorized to administer the oath or affirmation in support of an affidavit filed in Michigan and, if properly executed, I believe such affidavit is sufficient and effective on its face. See M.C.L. §§ 565.262(a)(i), 565.263(1) and (4).

Here, the affidavit of merit filed in this matter was confirmed by oath or affirmation in Pennsylvania before an authorized notary public. Neither the sufficiency of the jurat nor the authority of the notary public was contested. Instead, defendants argued that, because the certification requirement of M.C.L. § 600.2102 was not complied with, the affidavit of merit was a nullity. In our original opinion, we agreed. After further review and consideration, I disagree and would correct this erroneous conclusion. Because my colleagues continue to hold that M.C.L. § 600.2102 applies to nullify affidavits that are notarized in other jurisdictions and not further certified as prescribed by M.C.L. § 600.2102, I dissent.

As was argued by plaintiffs in their motion for reconsideration, and by amici curiae in their briefs, M.C.L. § 600.2102 and the URAA, particularly M.C.L. § 565.263, are harmonious and should be read in pari materia. Both statutes relate to authentication and have the same general purpose —to verify the authenticity of notarial acts, including those involving affidavits. See State Treasurer v. Schuster, 456 Mich. 408, 417, 572 N.W.2d 628 (1998), quoting Detroit v. Michigan Bell Tel. Co., 374 Mich. 543, 558, 132 N.W.2d 660 (1965).

The statute in dispute, M.C.L. § 600.2102, provides a method of authenticating notarial acts, i.e., of proving that a notary public actually notarized the document. M.C.L. § 600.2102(4) states that "[t]he signature of such notary public ... and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public... shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court." M.C.L. § 600.2102 has been in its present form since 1879 and, until the URAA was enacted in 1969, appears to have been the only means of proving notarial acts.^[1]

The URAA, however, explicitly states that it is "an additional method of proving notarial acts." M.C.L. § 565.268. And, M.C.L. § 565.263(4) provides that the signature and title of the notary public are prima facie evidence that he or she is a notary public and that his or her signature is genuine. That is, there is another method of proving that a notary public actually notarized the document that does not require a clerk of a court to perform the authenticating function. The majority's reliance on and interpretation of the sentence, "Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state," found in M.C.L. § 565.268 is misguided. The key phrase in that sentence is "the recognition accorded to notarial acts...." Reasonably interpreted, the sentence does not eviscerate the effect of the URAA or buttress the applicability of M.C.L. § 600.2102. That is, rather than decreasing or limiting the recognition accorded notarial acts, the URAA broadens the recognition accorded to notarial acts. The majority's reasoning also creates a double standard with respect to affidavits that will be read in judicial proceedings versus those that will not. This seems to create logistical problems in that affidavits typically have the potential of ending up in a judicial proceeding, sometimes years after the notarial act was performed, although litigation was not anticipated at the time the affidavit was notarized.

Further, contrary to the majority's claim, my interpretation of the harmonious nature of the URAA and M.C.L. § 600.2102 does not "clearly diminish the requirements of MCL 600.2102." Ante at n. 2. Although it is apparent that the simple method of authentication permitted by the URAA likely makes obsolete the certification method provided by M.C.L. § 600.2102, each is still an alternative method of verifying the authenticity of notarial acts. We may not question the wisdom of a statute or inquire about the methods of the Legislature. See Smith v. Cliffs on the Bay Condo. Ass'n, 463 Mich. 420, 430, 617 N.W.2d 536 (2000); McDonald Pontiac-Cadillac-GMC, Inc. v. Saginaw Co. Prosecutor, 150 Mich.App. 52, 55, 388 N.W.2d 301 (1986). It may well be that advances in technology, particularly communications and information technology, led to this development of law. In any event, our goal is simply to ascertain and give effect to the intent of the Legislature. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). Consistently with that directive, and cognizant of our duty to attempt to reconcile statutes to avoid conflict, I must conclude that the URAA, particularly M.C.L. § 565.263, and M.C.L. § 600.2102 are alternative and viable means of proving notarial acts. See People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998).

Accordingly, on reconsideration I conclude that the affidavit of merit filed in this matter was sufficient and effective on its face. Therefore, I would reverse the trial court's dismissal of this action on the ground that the affidavit of merit was a nullity and remand the matter to the trial court for continued proceedings.

NOTES

[1] After the enactment of the URAA, this Court, in Sellers v. Goldapper, unpublished opinion per curiam, issued November 4, 1997 (Docket No. 196914), 1997 WL 33339890, found a defendant's affidavit showing a meritorious defense to be a nullity under M.C.L. § 600.2102(4) for lack of certification of the notary's signature when the defendant was a New York resident. We view this unpublished opinion by a panel of this Court, requiring an affidavit from an New York resident to meet the requirements of M.C.L. § 600.2102(4), as persuasive, because of the limited case law, but note that unpublished opinions are not binding under the rules of stare decisis. MCR 7.215(C)(1); see also Dyball v. Lennox, 260 Mich.App. 698, 705 n. 1, 680 N.W.2d 522 (2004).

[2] We note that the dissent purports to harmonize M.C.L. § 600.2102 and the various provisions of the URAA by rendering significant parts of M.C.L. § 600.2102(d) nugatory. In construing a statute, a court should presume that every word has some meaning and should avoid any construction that would render any part of a statute surplusage or nugatory Jenkins v. Patel, 471 Mich. 158, 167, 684 N.W.2d 346 (2004); Edgewood Development, Inc. v. Landskroener, 262 Mich.App. 162, 167, 684 N.W.2d 387 (2004). The dissent's interpretation basically makes the certification requirement in M.C.L. § 600.2102(4) worthless or nugatory because by interpreting the URAA as an additional method that can be used instead of using the M.C.L. § 600.2102, the certificate provision is no longer required. Further, the dissent provides that the purpose of both statutes is "to verify the authenticity of notarial acts, including those involving affidavits." Post at 882. As noted, statutes that have a common purpose should be read to harmonize with each other in "furtherance of that purpose." Antrim Co. Treasurer, supra at 481, 688 N.W.2d 840. The dissent's attempt to harmonize the statutes does not further a purpose of verifying the authenticity of a notarial act, but, instead, limits the requirements for verifying the authenticity of an out-of-state notarial act. When reading statutes to avoid conflict, the construction given should give effect to each without repugnancy, overreaching, absurdity, or unreasonableness. Livonia Hotel, LLC v. City of Livonia, 259 Mich.App. 116, 131, 673 N.W.2d 763 (2003). The dissent does not give effect to M.C.L. § 600.2102. To avoid conflict and harmonize the statutes, the dissent cites M.C.L. § 565.268, which provides that the URAA is "an additional method of proving notarial acts." But the dissent avoids citing the next sentence of the M.C.L. § 565.268, which provides, "Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state." To accept our dissenting colleague's harmonizing of the statutes would clearly diminish the requirements of M.C.L. § 600.2102. If two statutes lend themselves to a construction that avoids conflict, that construction should control. House Speaker, supra at 568-569, 495 N.W.2d 539; Travelers Ins, supra at 280, 597 N.W.2d 235. The only way to avoid conflict when reading the statutes together is to read M.C.L. § 600.2102 as requiring additional requirements for affidavits to be read by the court. This does not conflict with the URAA because of M.C.L. § 565.268.

[3] Our position is further supported by Lee v. Putz, unpublished memorandum opinion and order of the United States District Court, Western District of Michigan, issued December 10, 2003 (Docket No. 1:03-CV-267), pp. 4-5, in which the district court, applying M.C.L. § 600.2102, found in connection with an affidavit of merit notarized by an out-of-state notary that, "[b]ecause an affidavit without the appropriate certification is null and void under Michigan law, Plaintiff has failed to assert a claim that is cognizable in Michigan state courts." The court further found that the plaintiff could not cure the defect because of the statute of limitations. We note that defendant Deering appended this federal court holding to his brief; however, for reasons not explained, the names of the parties, and the file number, have been redacted. But an unredacted copy is attached to defendant Memorial Hospital's brief. We further note that, although not binding, this case stands as a recent example in which M.C.L. § 600.2102 was held to impose a certification requirement on out-of-state notaries public involved with affidavits of merit in medical malpractice cases. See Sharp v. City of Lansing, 464 Mich. 792, 802-803, 629 N.W.2d 873 (2001).

[4] Although full retroactivity is favored when a decision "does not announce a new principle of law," Michigan Ed. Employees Mut. Ins. Co. v. Morris, 460 Mich. 180, 190, 596 N.W.2d 142 (1999), neither our Supreme Court nor this Court has ever limited application to when new principles of law are announced.

[5] The brief amicus curiae of the State Bar of Michigan asserts, "The vast majority of the members of the State Bar of Michigan who have supplied out-of-state affidavits have supplied uncertified affidavits in the belief that the plain language of the URAA would be given effect." The brief amicus curiae on behalf of the State Bar of Michigan Negligence Section and Elder Law Section asserts, "Attorneys in this State .... have read this URAA as obviating the need to obtain formal certification of that authority ... as required by M.C.L. § 600.2102, in order to present a valid affidavit of merit to the court in compliance with M.C.L. § 600.2912d."

[6] See n. 5 of this opinion.

[7] The wisdom of a statute is for the determination of the Legislature, and the law must be enforced as written. Smith v. Cliffs on the Bay Condo. Ass'n, 463 Mich. 420, 430, 617 N.W.2d 536 (2000); City of Lansing v. Lansing Twp., 356 Mich. 641, 648, 97 N.W.2d 804 (1959); In re Worker's Compensation Lien, 231 Mich.App. 556, 563, 591 N.W.2d 221 (1998). "A court may not inquire into the knowledge, motives, or methods of the Legislature," Fowler v. Doan, 261 Mich.App. 595, 599, 683 N.W.2d 682 (2004), and may not construe a statute on the basis of a policy decision different than that chosen by the Legislature, Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 752, 641 N.W.2d 567 (2002).

[1] I believe the majority's continued reliance on In re Alston's Estate, 229 Mich. 478, 201 N.W. 460 (1924), for the proposition that affidavits received in judicial proceedings require the special certification set forth in M.C.L. § 600.2102 is misplaced because the holding predates the enactment of the URAA.