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Apsey v. Memorial Hospital6/9/2005
he 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 To the extent plaintiffs and amici curiae raise further arguments regarding the certification process being outdated, potentially impossible in some states, etc., these questions are best left for the Legislature.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Kathleen Jansen, Hilda R. Gage.
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).
MCL 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 Medical Center, 242 Mich App 703, 711; 620 NW2d 319 (2000). Pursuant to the Uniform Recognition of Acknowledgments Act (URAA), MCL 565.261 et seq., a notary public duly 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 MCL 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 a duly authorized notary public. Neither the sufficiency of the jurat nor the authority of the notary public were contested. Instead, defendant argued that, because the certification requirement of MCL 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 granted plaintiffs' motion for reconsideration to correct this erroneous conclusion. Because my colleagues continue to hold that MCL 600.2102 applies so as to nullify affidavits that are notarized in other jurisdictions and not further certified as prescribed by MCL 600.2102, I dissent.
As was argued by plaintiffs in their motion for reconsideration, and in amici curiae briefs, MCL 600.2102 and the URAA, particularly MCL 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 NW2d 628 (1998), quoting Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965).
The statute in dispute, MCL 600.2102, provides a method of authenticating notarial acts, i.e., of proving that a notary public actually notarized the document. MCL 600.2102(4) states that " 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." MCL 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.
The URAA, however, explicitly states that it is "an additional method of proving notarial acts." MCL 565.268. And, MCL 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, it is another method of proving that a notary public actually notariz
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