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IMPACT OF THE APSEY DECISION
By: Daniel E. Best
Weltman, Weinberg, & Reis Co., L.P.A.
On June 9, 2005, the Michigan Court of Appeals decided Apsey v Memorial Hospital, et al, 266 Mich. App. 666, 702 NW2d 870 (2005). Although this case involved a medical malpractice claim, it will have significant impact on all litigation involving out of state parties in the State of Michigan. Given the nature of the collection industry, it will have a significant impact on collection litigation.
The case involved a conflict between the Uniform Recognition of Acknowledgments Act, as enacted into statute by the State of Michigan in 1969 (being MCL 565.261), and MCL 600.2102, statute enacted in 1879. Specifically, MCL 600.2102 requires that affidavits notarized in a state of the United States other than Michigan, must 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.” The Uniform Recognition of Acknowledgments Act, as adopted in Michigan, requires that out of state notaries be treated in the same manner as Michigan notaries. The Appellant in this case claimed that these two statutes conflicted, and as such, the more recent statute controlled.
The Apsey Court did not find a conflict between these two statutes and held that MCL 600.2102, and its requirement that affidavits notarized in the United States, other than Michigan, must be certified by the clerk of court in any court of record in the county where such affidavit was taken, and be under seal of that court was applicable to affidavits sought to be used in court proceedings.
This law as interpreted by this Court requires out of state parties take an extra step every time they send an affidavit to local counsel. Specifically, before an affidavit notarized outside the State of Michigan can be assured of recognition and used in court proceedings, that affidavit must be taken to the clerk in a court in the county in which the affidavit was taken and signed, and that clerk must, under the Court’s seal, certify both the signature of the notary is, indeed, what it purports to be (in other words, that it is that notary’s signature) and that at the time of the taking and notarizing of the affidavit the purported notary was, indeed, a notary public or justice of the peace authorized to administer oaths in the state where the affidavit was taken. Under the Apsey decision, without this certification, the affidavit will be deemed absolutely invalid in any Michigan Court.
Affidavits are generally used in Michigan in court proceedings in the following areas:
- In support of motion for summary disposition (identical for a motion for summary judgment);
- To support a complaint which needs to be verified;
- To support a complaint where an original note or contract are not available at the time of filing;
- To support a complaint on an account stated.
There are several things that can be done to minimize the effects of the Apsey decision. For example, Michigan allows the introduction of business records that are supported by “a written declaration under oath by its custodian …”. (MRE 902 (11). Therefore, to support a motion for summary disposition (judgment), it is possible to attach the business records with the “written declaration under oath” to support the facts set forth in the motion, in lieu of an actual affidavit. In these cases, it is imperative that the business records include a record of the outstanding balance due through the time the complaint was filed.
It is noteworthy that this is strictly a Court of Appeals decision. As such, it is binding on those courts within its appellate jurisdiction, but persuasive on those outside. There has not been a conflicting decision handed down yet. Further, this decision has been appealed to the Michigan Supreme Court. Should that Court uphold the ruling, then it would be binding on all courts within the State of Michigan. In addition, through organizations such as the Michigan Creditor’s Bar Association, legislative redress is being sought to eliminate this archaic statute. These efforts are being opposed by the insurance industry, which argues that this limits the ability to bring a medical malpractice claim and thereby frivolous suits. To the extent possible, creditors should be seeking to have their lobbyists support any such legislation. This support should be coordinated through the MCBA’s lobbyist, Eric Rule, who can be reached at errule@retailers.com.
* Special thanks to:
Barb Adams, Michael Buckles and Chiara Mattieson of Weltman, Weinberg, & Reis Co., L.P.A.
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