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Apsey v. Memorial Hospital6/9/2005
must be filed with the complaint in order to commence action and toll the period of limitations. Scarsella v Pollak, 461 Mich 547, 552-553; 607 NW2d 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 where the affidavit was executed. In re Alston's Estate, 229 Mich 478, 480-482; 201 NW 460 (1924). Similarly, MCL 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 . . . ." MCL 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 construed by our Supreme Court in In re Alston's Estate, supra at 481; see also Wallace v Wallace, 23 Mich App 741, 744-745; 179 NW2d 699 (1970).
Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), MCL 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." MCL 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 " notary public authorized to perform notarial acts in the place in which the act is performed." MCL 565.262(a)(i). MCL 565.263(1) of the URAA provides:
If the notarial act is performed by any of the persons described in subdivisions (a) to (d) 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.
MCL 565.263(4) states that the "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 title are prima facie evidence of authenticity, MCL 565.263(4). But the signature and notary seal do not satisfy the requirements set forth in MCL 600.2102(4). The question, then, is whether MCL 565.262 affects MCL 600.2102, and, if so, in what manner.
When this issue was initially raised before the trial court, only the applicability of MCL 600.2102 was argued. The court recognized the inflexibility of that statute, and decided to grant summary disposition. In a subsequent hearing that
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