STATE OF MICHIGAN
COURT OF APPEALS
DENNIS BASSETT, UNPUBLISHED
March 19, 2015
Plaintiff-Appellant,
v No. 320267
Oakland Circuit Court
JESSIE MARIE HARDIN, LC No. 2010-112534-NI
Defendant,
and
AFFIRMATIVE INSURANCE SERVICES,
Defendant-Appellee.
Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.
PER CURIAM.
Plaintiff, Dennis Bassett, appeals as of right the trial court’s order denying his motion to
reinstate his case against defendant, Affirmative Insurance Services (Affirmative). The trial
court dismissed Bassett’s case for improper service and failed to notify Bassett that it had done
so. We reverse and remand for further proceedings.
I. FACTS
Bassett was injured in an automobile accident with defendant Jessie Marie Hardin in
April 2010. He filed a complaint against Hardin in August 2010. On March 14, 2010, Bassett
amended his complaint to add claims against Affirmative. Affirmative was Hardin’s insurer.
The trial court issued a summons on March 15, 2011. On May 22, 2011, Bassett filed a
copy of the certified mail receipt, indicating that “DAS 1-5” signed for the summons and
complaint at Affirmative’s post office box in Addison, Texas. This address is Affirmative’s
address “for appointments, cancellations, and renewal purposes.” Affirmative’s registered agent
was located in Bingham Farms, Michigan. The summons expired on June 13, 2011.
On July 20, 2011, the trial court clerk entered a “final court dismissal summons has
expired as to Affirmative[.]” Bassett claims that the trial court did not notify him of the
dismissal, and no notice of dismissal or proof of service is contained in the lower court file or
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register of actions. On July 21, 2011, the trial court entered a stipulated order between Bassett
and Hardin that dismissed the case against Hardin for binding arbitration. The trial court’s order
indicated that the order dismissing Hardin “DOES NOT dispose of the last pending claim and
DOES NOT close this case.” The trial court’s register of actions indicates that it subsequently
reinstated the case, noting “final disposition error clerical,” and then dismissed it again, noting
“final disp-order binding arb.”
On July 22, 2011, Bassett filed a proof of service that indicated that he served a copy of
the summons, complaint, and witness list by certified mail to Affirmative’s address in Addison,
Texas. “Bryan Osborne” acknowledged receipt. In September 2013, Bassett’s counsel filed a
motion to reinstate the case against Affirmative and enforce an agreement to arbitrate on the
apparently mistaken belief that Affirmative had also been dismissed for arbitration.
On October 20, 2013, Bassett moved to reinstate the case on the basis of a clerical error.
Bassett contended that the trial court had improperly dismissed his case against Affirmative for
lack of service. Affirmative responded to Bassett’s motion, contending that Bassett had failed to
serve it properly. After conducting a hearing and reviewing the motion, the trial court denied
Bassett’s motion to reinstate the case, reasoning that Affirmative was not properly served
“because their resident agent was not served with notice of process[.]” Bassett now appeals.
II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s ruling on a motion to set
aside an order of dismissal for non-service. Bullington v Corbell, 293 Mich App 549, 554-555;
809 NW2d 657 (2011). The trial court abuses its discretion when its decision falls outside the
range of principled outcomes, Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006), or when it makes an error of law. In re Waters Drain Drainage Dist, 296 Mich App 214,
220; 818 NW2d 478 (2012).
III. SERVICE OF PROCESS
Bassett contends that the trial court did not properly dismiss his action for lack of service
under MCR 2.105(J)(3) because Affirmative had actual knowledge of the action. We agree that
dismissal was improper if Affirmative had actual knowledge of the action, but conclude that the
existing record is insufficient to determine Affirmative’s knowledge.
The service of process rules are “intended to satisfy the due process requirement that a
defendant be informed of an action by the best means available under the circumstances.” MCR
2.105(J)(1). “With regard to private corporations, the court rules require personal service on an
officer, registered agent, director, trustee, or person in charge of an office or business
establishment.” Bullington, 293 Mich App at 558 (emphasis added). See MCR 2.105(D)(1) and
(2). The service of process rules also provide that “[a]n action shall not be dismissed for
improper service of process unless the service failed to inform the defendant of the action within
the time provided in these rules for service.” MCR 2.105(J)(3). “[I]f a defendant actually
receives a copy of the summons and complaint within the permitted time, he cannot have the
action dismissed on the ground that the manner of service contravenes the rules.” Hill v
Frawley, 155 Mich App 611, 613; 400 NW2d 328 (1986).
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In this case, Bassett does not dispute that he failed to properly serve Affirmative under
MCR 2.105(D). However, the trial court impermissibly ended its inquiry there. In response to
Bassett’s motion to set aside the dismissal, Affirmative provided the trial court with a copy of the
envelope that had contained the summons and complaint. Thus, there was at least some evidence
that Affirmative may have had actual knowledge of the pending action. But there is no
indication in the record regarding whether DAS or Bryan Osborne are persons against whom
actual knowledge could be imputed to Affirmative or, if they were not, when Affirmative
received actual knowledge of the action. We conclude that the trial court erred as a matter of law
when it dismissed the action without determining whether dismissal was appropriate under MCR
2.105(J)(3).
We do not reach Bassett’s argument that the trial court’s dismissal of his case without
notice deprived him of due process because we resolve the case on narrower grounds. However,
this opinion does not preclude Bassett from raising his due process argument on remand.
We reverse and remand. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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