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Randolph v. Adams8/2/2002
n the time specified by MCL 600.2912e. The trial court erred in so concluding. In Kowalski and its companion case Castro v Cottage Health Services, this same trial court denied the defendants' motions to set aside defaults, concluding that the defaults were required under the circumstances. This Court held that MCL 600.2912e neither prohibits nor requires a default when the defendant fails to timely file an affidavit of meritorious defense, Kowalski, supra at 162, and reversed the trial court's orders denying the defendants' motions to set aside the defaults on the ground that the trial court did not exercise its discretion in entering the defaults and did not consider the possibility of other remedies. Id. at 165-166.
We reach a similar result in this case, and for the same reason. We remand with instructions that the trial court exercise its discretion to determine the appropriate remedy for Adams' failure to file a timely affidavit of meritorious defense. That remedy could be a default or some other sanction.
The trial court should consider the reasons for Adams' delay in filing his affidavit, any actions he took to apprise plaintiffs and the court of his reasons for the delay, any prejudice to plaintiffs resulting from the delay, and any other relevant factors. Id. at 166.
Reversed and remanded. We do not retain jurisdiction.
Christopher M. Murray
David H. Sawyer
Brian K. Zahra
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