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Knobloch v. Langholz6/21/2002
UNPUBLISHED
Plaintiff appeals as of right from the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
I. Facts and Procedural History
This case involves a medical negligence wrongful death claim arising out of the September 11, 1996 death of David Knobloch. Plaintiff was named personal representative of Knobloch's estate on September 22, 1997. On September 16, 1999, plaintiff sent defendants the required notices of intent to pursue a claim, properly tolling the two year statute of limitations for asserting wrongful death claims arising out of alleged medical negligence. See MCL 600.5805(5) and MCL 600.5852. On February 22, 2000, plaintiff filed the complaint in the instant case against defendants. Attached to the complaint was a document titled "Plaintiff's Affidavit of Merit Under MCL 600.2912(D) ," signed by Steven G. Meister, M.D., but not notarized. Dr. Meister asserted in the document that defendants breached the duty of care in treating Knobloch, and that this breach of duty was the proximate cause of Knobloch's death.
In July 2000, Defendants moved for summary disposition under MCR 2.116(C)(7). Defendants first asserted that because the document signed by Dr. Meister was not notarized, it was not an affidavit within the meaning and requirements of 600.2912d(1) . Next, defendant argued that since the document signed by Dr. Meister was not an affidavit, plaintiff's complaint was required to be dismissed without prejudice for failure to file an affidavit of merit with the complaint as required under section 2912d(1). Finally, defendant contended that the filing of the complaint and purported affidavit failed to toll the statute of limitations on plaintiff's claim, and that the statute of limitations had since run and the time for filing plaintiff's claim had elapsed.
Plaintiff opposed the motion, arguing that because the affidavit of merit is intended to prevent frivolous claims and not to preclude legitimate claims from being pursued, the failure to file a notarized affidavit should be treated as a clerical error that does not result in dismissal of plaintiff's case. Plaintiff further argued that the affidavit of merit should be treated like a pleading, with the opportunity to amend being freely granted, and that he should be permitted to amend his pleadings by filing a notarized affidavit of merit.
The trial court granted defendants' motion, finding that because the document signed by Dr. Meister was not notarized, it was a statement rather that an affidavit of merit meeting the statutory requirements, and that accordingly, the case was required to be dismissed because the statute of limitations had expired prior to the filing of a valid complaint. Plaintiff filed a motion for reconsideration on October 11, 2000, which the trial court denied on October 31, 2000. This appeal now ensues.
II. Standard of Review
Whether a cause of action is barred by a period of limitations is a question of law that we review de novo. Todorov v Alexander, 236 Mich App 464, 467; 600 NW2d 418 (1999). If a cause of action is time-barred, then summary disposition is appropriate under MCR 2.116(C)(7). See McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999). We also review de novo a trial court's decision to grant or deny summary disposition pursuant to MCR 2.116(C)(7). Id. at 200-201, citing Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d 546 (1999). In reviewing whether summary disposition is appropriate under MCR 2.116(C)(7), we consider all the documentary evidence submitted by the parties and accept the plaintiff's well- pleaded allegat
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