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Banwell v. Burstein4/14/2005
UNPUBLISHED
Plaintiff appeals as of right from an order granting defendant's motion for partial summary disposition. We affirm.
I. Motion to Set Aside Default
Plaintiff first argues that the circuit court abused its discretion in granting defendant's motion to aside default. Specifically, plaintiff claims that defendant did not meet the "good cause" and "meritorious defense" requirements under MCR 2.603(D). We disagree.
A. Standard of Review
This Court reviews for an abuse of discretion the trial court's decision to set aside a default. AMCO Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich 90, 94; 666 NW2d 623 (2003).
B. Analysis
MCR 2.603(D)(1) provides that:
A motion to set aside a default or default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.
Good cause that warrants setting aside a default or default judgment can be shown by either of the following: (1) a procedural defect or irregularity or (2) a reasonable excuse for the failure to comply with the requirements that created the default. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 233; 600 NW2d 638 (1999). In addition, the trial court must also consider whether its failure to set aside the default will result in manifest injustice. Id. Manifest injustice is "the result that would occur if a default were allowed to stand after a party has demonstrated good cause and a meritorious defense." Id. "When a party puts forth a meritorious defense and attempts to satisfy 'good cause' by showing (1) a procedural irregularity or defect, or (2) a reasonable excuse for failure to comply with the requirements that created the default, the strength of the defense obviously will affect the 'good cause' showing that is necessary. In other words, if a party states a meritorious defense that would be absolute if proven, a lesser showing of 'good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice." Id. at 233-234.
Plaintiff filed suit against defendant on December 17, 2002. Defendant was personally served on March 11, 2003, and after not receiving a response from defendant within twenty-one days, plaintiff entered a default on April 1, 2003. On April 2, 2003, defendant filed an answer. Defendant then filed a motion to set aside the default. The trial court, after conducting a hearing, concluded that the affidavit of meritorious defense was proper and that the delay between the default and the filing of defendant's answer did not affect plaintiff's substantial rights. The trial court granted defendant's motion to set aside the default.
The trial court did not abuse its discretion in setting aside the default. See Daugherty v State, 133 Mich App 593, 599-601; 350 NW2d 291 (1984). Here, the two-day period in which defendant was inactive in pursuing the defense was brief. Plaintiff showed no harm resulting from defendant's failure to timely file the answer. Further, as demonstrated, infra, the trial court properly granted defendant's motions for partial summary disposition, thus indicating that defendant would have suffered manifest injustice if the default had not been set aside. And although plaintiff challenges the absence of specific factual allegations in the affidavit of meritorious defense, those allegations constituted the basis for defendant's motions for partial summary disposition. The trial court did not abuse its discretion in setting aside the default.
II. Assertion of Defenses
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