If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROLAND TINDLE, D.O., FOR PUBLICATION
April 20, 2023
Plaintiff-Appellee, 9:15 a.m.
v No. 360861
Oakland Circuit Court
LEGEND HEALTH, PLLC, and LC No. 2021-190848-CB
COMPLETE CARE CENTER, PC,
Defendants-Appellants.
Before: CAVANAGH, P.J., and BOONSTRA and RIORDAN, JJ.
RIORDAN, J.
In this breach-of-contract case, defendants appeal as of right the order denying their motion
to set aside the default judgment and denying reconsideration under MCR 2.603(D)(1) and MCR
2.612(C). We reverse in part and remand to the trial court for further proceedings.
I. FACTS
Plaintiff Roland Tindle, D.O., filed its breach-of-contract claim against Legend Health,
PLLC, (“Legend Health”) and Complete Care Center, PC, (“Complete Care”) based upon a Stock
Purchase and Sales Agreement (“sales agreement”) plaintiff entered with Legend Health to sell his
medical practice, Complete Care, to Legend Health. In his complaint, plaintiff alleged that
defendants owed him a total of $248,601.26 under the sales agreement. Plaintiff claimed that he
served a copy of the summons and complaint on defendants under the applicable court rule through
a process server and by registered mail. Defendants did not respond to the action. Plaintiff
requested that the clerk of the court enter a default judgment, and he certified to the clerk that he
served copies of the request to enter default on defendants via first-class mail. Plaintiff then moved
for entry of default judgment and, following a hearing on the motion, the trial court entered default
judgment against defendants. Defendants moved the trial court to set aside the default judgment
under MCR 2.603(D)(1) and MCR 2.612(C), which plaintiff opposed. The trial court waived oral
argument and denied defendants’ motion for a lack of merit on the grounds presented. This appeal
followed.
II. DISCUSSION
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Defendants argue that the trial court erred by denying their motion to set aside the default
judgment under MCR 2.603(D)(1) as they had established good cause and a meritorious defense.
They also argue that the trial court erred by denying their motion for reconsideration under MCR
2.612(C)(1)(a) as they were caught by surprise by the impending action and the entry of a default
judgment and as a result had no time to prepare a defense in response thereto.
A. STANDARD OF REVIEW
“Review of a trial court’s decision on a motion to set aside a default or a default judgment
is for a clear abuse of discretion.” Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
This Court also reviews for an abuse of discretion a trial court’s denial of reconsideration. See
Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). “[A]n abuse of
discretion occurs only when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Saffian, 477 Mich at 12. “[T]he policy of this state is generally against
setting aside defaults and default judgments that have been properly entered.” Alken-Ziegler, Inc
v Waterbury Headers Corp, 461 Mich 219, 229; 600 NW2d 638 (1999). “A trial court necessarily
abuses its discretion when it makes an error of law.” Pirgu v United Servs Auto Ass’n, 499 Mich
269, 274; 884 NW2d 257 (2016). To the extent that this review requires “[t]he construction and
interpretation of court rule[s],” this Court applies a de novo standard of review. Barclay v Crown
Bldg & Dev, Inc, 241 Mich App 639, 642; 617 NW2d 373 (2000).
B. ANALYSIS
1. MCR 2.603(D)(1)
Defendants first argue that the trial court abused its discretion when it denied their motion
to set aside the default judgment under MCR 2.603(D)(1). We agree in part. MCR 2.603(D)(1)
states: “A motion to set aside a default or a default judgment . . . shall be granted only if good
cause is shown and a statement of facts showing a meritorious defense . . . is filed.” We have
explained that “the ‘good cause’ and ‘meritorious defense’ requirements of MCR 2.603(D)(1) are
analytically different concepts and that a party must show both in order to prevail on a motion to
set aside a default judgment.” Barclay v Crown Bldg & Dev, Inc, 241 Mich App 639, 653; 617
NW2d 373 (2000). “[T]he burden of demonstrating good cause and a meritorious defense to set
aside the default [falls] on defendant[s].” Saffian, 477 Mich at 15.1
1
The concurrence in part, and dissent in part reasons that the trial court never obtained personal
jurisdiction over defendants, so MCR 2.603(D)(1) is inapplicable. Instead, the concurrence in part,
and dissent in part concludes, the default judgment against both defendants should be set aside
under MCR 2.612(C)(1)(d), which applies when “[t]he judgment is void.”
However, defendants did not cite to MCR 2.612(C)(1)(d) in their motion to set aside the
default judgment or their brief on appeal. Nor did defendants argue in either filing that the trial
court lacked personal jurisdiction, other than to suggest in passing that the failure to comply with
the court rules governing service of process deprived the court of personal jurisdiction. Possibly,
defendants’ failure to argue personal jurisdiction was due to the fact that Syed Ali Karim, the
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a. GOOD CAUSE
Defendants claim that they have established good cause because plaintiff’s service of the
summons and complaint to defendants was deficient. We have held that good cause can be shown
by: “(1) a substantial procedural defect or irregularity or (2) a reasonable excuse for the failure to
comply with the requirements that created the default.” Saffian v Simmons, 267 Mich App 297,
301-302; 704 NW2d 722 (2005), aff’d 477 Mich 8 (2007). Among the factors for a trial court to
consider when making a finding on whether the defendant established good cause to set aside a
default judgment is “whether there was defective process or notice.” Shawl v Spence Bros, Inc,
280 Mich App 213, 238; 760 NW2d 674 (2008). Therefore, if defendants establish that plaintiff
failed to properly serve them, they have satisfied this prong of MCR 2.603(D)(1).2
Methods of proper service are listed in MCR 2.105 according to the “corporate nature of
the defendant.” Bullington v Corbell, 293 Mich App 549, 556; 809 NW2d 657 (2011). In
Bullington, this Court stated:
The methods described in the rule are intended to satisfy the due process
requirement that a defendant be informed of an action by the best means available
under the circumstances. Compliance with the court rules fulfills the constitutional
requirement of notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections. [Id. (quotation marks and citations omitted).]
Defendants argue that plaintiff failed to comply with MCR 2.105(H)(2) and MCR
2.105(D)(2). Legend Health is a professional limited-liability company. To satisfy proper service
to Legend Health, plaintiff was required to serve a copy of the summons and complaint under
MCR 2.105(H). In relevant part, MCR 2.105(H) states:
(1) serving a summons and a copy of the complaint on the managing member, the
non-member manager, or the resident agent;
(2) serving a summons and a copy of the complaint on a member or other person in
charge of an office or business establishment of the limited liability company and
general manager of Legend Health, was present at the hearing on plaintiff’s motion for entry of
default judgment and explained to the trial court on the record that he had only recently learned of
the proceedings and had not received all of the relevant documents. Whether the presence and
conduct of Karim at the hearing constituted an “appearance” that waived challenge to personal
jurisdiction is a nuanced question that need not be addressed here, see Ragnone v Wirsing, 141
Mich App 263, 265; 367 NW2d 369 (1985). Under the circumstances before us, the more prudent
course of action is to limit our analysis to the specific argument raised by defendants.
2
Shawl provides that its factors are not “intended to be exhaustive or exclusive.” Shawl, 280 Mich
App at 239. However, our Supreme Court has indicated that the failure to serve process is itself
sufficient to warrant setting aside a default judgment. See CR Mechanical, Inc v Temp-San Corp,
Inc, 394 Mich 102, 102-103; 228 NW2d 784 (1975).
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sending a summons and a copy of the complaint by registered mail, addressed to
the registered office of the limited liability company.
In turn, premised on defendant Complete Care, PC’s “corporate nature” as a professional
corporation, plaintiff was required to serve Complete Care in compliance with MCR 2.105(D),
which states in relevant part, that service is effected by:
(1) serving a summons and a copy of the complaint on an officer or the resident
agent;
(2) serving a summons and a copy of the complaint on a director, trustee, or person
in charge of an office or business establishment of the corporation and sending a
summons and a copy of the complaint by registered mail, addressed to the principal
office of the corporation;
As to defendant Legend Health, plaintiff contends that he served the limited-liability
company via his process server in accordance with MCR 2.105(H)(2). Central to the issue of
whether service was made according to the court rules is dependent on the meaning of the term
“person in charge of an office.” On one hand, a “person in charge of an office” could mean a
person responsible for interim tasks such as answering phone calls, being responsive to persons
who enter the office, and other tasks related to the practical functions of an office. On the other
hand, a “person in charge of an office” might mean a person with authority and responsibility to
make decisions on behalf of the office. Plaintiff urges that Malone is a “person in charge of an
office” because she was alone in the office when the process server handed her a copy of the
summons and complaint. Plaintiff’s rationale suggests that his interpretation of the term is the
former, i.e., a person who is responsible for interim tasks. Defendants argue to the contrary. They
state that Malone is not a “person in charge of an office” because she is a medical assistant and,
presumably, had no authority in managing any meaningful function.
The trial court denied defendants’ motion to set aside the default judgment “for a lack of
merit on the grounds presented.” Because the trial court did not provide further explanation on its
finding and waived oral argument, there is no record of the trial court’s reasoning. However, we
may infer that the trial court possibly assumed that a “person in charge of an office” could include
Malone.
“The rules of statutory construction apply to the construction of court rules.” Hill v L F
Transp, Inc, 277 Mich App 500, 507; 746 NW2d 118 (2008). “Statutory interpretation requires
an holistic approach. A provision that may seem ambiguous in isolation often is clarified by the
remainder of the statutory scheme.” SMK, LLC v Dep’t of Treasury, 298 Mich App 302, 309; 826
NW2d 186 (2012), aff’d in part and vacated in part on other grounds Fradco, Inc v Dep’t of
Treasury, 495 Mich 104; 845 NW2d 81 (2014) (citations omitted).
The doctrine of noscitur a sociis is a helpful guide in determining the meaning of “person
in charge of an office” in this court rule. “This doctrine is premised on the notion that the meaning
of statutory language, plain or not, depends on context.” Griffith ex rel Griffith v State Farm Mut
Auto Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005) (quotation marks and citation omitted).
This context is provided by the words that “precede and those which follow” the phrase. Id.
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(quotation marks and citation omitted). Also, interpreting the meaning of a term derives from the
principle that “words grouped in a list should be given related meaning.” Id. (quotation marks and
citation omitted).
Applying MCR 2.105(H)(2) to Legend Health, the term “person in charge of an office” is
preceded by the term “member.” In addition, MCR 2.105(H)(1) lists the terms “managing
member, the non-member manager, or the resident agent.” Read holistically, the meaning of MCR
2.105(H)(2) is best understood from the context of the words in MCR 2.105(H)(1). See SMK,
LLC, 298 Mich App at 309. This suggests that the term “person in charge of an office” is one who
has a level of authority to make decisions on behalf of an entity. Similarly, in MCR 2.105(D)(2),
as applicable to Complete Care, the term “person in charge of an office” is preceded by the terms
“director” and “trustee.” Moreover, MCR 2.105(E)(1) includes the term “person in charge of an
office,” and it is preceded by the terms “officer, director, trustee, [and] agent.” Put in the context
of these words, we conclude that the term “person in charge of an office” refers to a person with
some authority to make decisions on behalf of an office of an entity.
Applied here, a medical assistant, regardless of whether she was alone at the office,
generally is not one with authority to make decisions on behalf of the defendant corporation. While
there may be a dispute as to whether Malone is a medical assistant of both Legend Health and
Complete Care, or just Complete Care, it is undisputed that Malone is a medical assistant.
Therefore, because a “person in charge of an office” is one with some authority to make decisions
on behalf of an office, plaintiff’s service of process through Malone to defendants is deficient.
Further, under the second part of MCR 2.105(H)(2), plaintiff also is required to send the
“summons and a copy of the complaint by registered mail, addressed to the registered office of the
limited liability company.” According to the Department of Licensing and Regulatory Affairs,
(“LARA”), the registered office of Legend Health is 8679 26 Mile Road, Suite 319, Washington,
Michigan. Plaintiff mailed a copy of the summons and complaint to Legend Health at 8401 Holly
Road, Grand Blanc, Michigan. This address is not the registered address of Legend Health.
Therefore, plaintiff failed to properly comply with the court rule requirements.
MCR 2.105(D)(2) contains similar language requiring plaintiff to send a copy of the
“summons and a copy of the complaint by registered mail, addressed to the principal office of the
corporation.” MCR 2.105(D)(2). The United States Supreme Court has defined “principal place
of business” as “the place where a corporation’s officers direct, control, and coordinate the
corporation’s activities.” Hertz Corp v Friend, 559 US 77, 92-93; 130 S Ct 1181; 175 L Ed 2d
1029 (2010). According to LARA, the address of Complete Care’s corporate officers is 8401
Holly Road, Grand Blanc, Michigan. While plaintiff mailed a copy of the summons and complaint
to Complete Care’s principal office as required by the court rule, because Malone is not a “person
in charge of an office,” plaintiff did not properly serve defendants.
As such, defendants have established good cause to set aside the default judgment.
However, this satisfies only one prong of MCR 6.03(D)(1) as defendants must also establish they
have a meritorious defense to plaintiff’s allegations.
b. MERITORIOUS DEFENSE
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To establish a meritorious defense, MCR 2.603(D)(1) requires defendants to execute an
affidavit in support of their proposed meritorious defense. We have stated:
[This rule] requires an affidavit of facts establishing a meritorious defense. The
purpose of an affidavit of meritorious defense is to inform the trial court whether
the defaulted defendant has a meritorious defense to the action. Such an affidavit
requires the affiant to have personal knowledge of the facts, state admissible facts
with particularity, and show that the affiant can testify competently to the facts set
forth in the affidavit. [Huntington Nat’l Bank v Ristich, 292 Mich App 376, 392;
808 NW2d 511 (2011) (citations omitted).]
In Shawl, we provided a nonexhaustive list of factors a trial court should consider in
deciding whether defendants have a meritorious defense:
[T]he trial court should consider whether the affidavit contains evidence that: (1)
the plaintiff cannot prove or defendant can disprove an element of the claim or a
statutory requirement; (2) a ground for summary disposition exists under MCR
2.116(C)(2), (3), (5), (6), (7) or (8); or (3) the plaintiff’s claim rests on evidence
that is inadmissible. [Shawl, 280 Mich App at 238 (cleaned up).]
Per the court rule, defendants filed the affidavit of resident agent Ali Karim3 in support of their
motion to set aside the default judgment.
In support of its meritorious defense contention, Legend Health specifically claims that
plaintiff cannot bring a breach-of-contract claim against it because plaintiff was the first party to
breach the contract. Legend Health is correct that “[u]nder Michigan law, one who first breaches
a contract cannot maintain an action against the other contracting party for his subsequent breach
or failure to perform. This general rule is qualified, however, by the requirement that the initial
breach is substantial.” Skaates v Kayser, 333 Mich App 61, 80; 959 NW2d 33 (2020) (quotation
marks and citations omitted). Our Supreme Court has stated that a substantial breach:
can be found only in cases where the breach has effected such a change in essential
operative elements of the contract that further performance by the other party is
thereby rendered ineffective or impossible, such as the causing of a complete failure
of consideration or the prevention of further performance by the other party.
[McCarty v Mercury Metalcraft Co, 372 Mich 567, 574; 127 NW2d 340 (1964)
(citations omitted).]
Furthermore, “[o]ne consideration in determining whether a breach is material is whether
the nonbreaching party obtained the benefit which he or she reasonably expected to receive.”
Holtzlander v Brownell, 182 Mich App 716, 722; 453 NW2d 295 (1990).
In accordance with MCR 2.603(D)(1), Legend Health’s manager, Karim, averred in his
affidavit to particular facts to support a meritorious defense, including: (1) during discussion
3
Also known as Syed Ali Karim. He also serves as the general manager of Legend Health.
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before execution of the sales agreement, plaintiff provided financial information related to
Complete Care; (2) Legend Health relied on that financial information in making a decision on the
price it would pay to purchase of Complete Care and its ultimate decision to enter into the sales
agreement; (3) plaintiff failed to disclose the existence of the Small Business Administration
(SBA) loan and lien on Complete Care’s assets; and (4) when Karim asked about the SBA loan
after execution of the agreement, plaintiff stated only he was subject to the loan and not Complete
Care. Although these facts present their own set of questions such as to when and how, after
signing the sales agreement, Legend Health learned of the SBA loan, if the facts proffered are
proven, Karim’s affidavit supports Legend Health’s claim that plaintiff breached his duty to give
Legend Health access to all information relevant to its purchase of Complete Care as required by
section 5.03 of the sales agreement.
However, the question remains whether the affidavit supports a claim that plaintiff’s
alleged breach-of-contract was substantial. Skaates, 333 Mich App at 80. In his affidavit, Karim
states two facts that may establish that the breach, if proven, is substantial: (1) “If Plaintiff had
disclosed the existence of [the loan] prior to the execution of the Agreement such disclosure would
have significantly reduced the amounts Legend Health would have paid [for the purchase of
Complete Care], or more likely would have resulted in the transaction not going forward at all.”
Secondly, that under the SBA loan agreement, plaintiff was prohibited from transferring the assets
of Complete Care without the prior authorization of the SBA, and there is no evidence he received
this authorization. These facts, if proven, suggest that Legend Health did not receive the benefit
it expected to receive as it was under the assumption the purchase price adequately reflected the
financial condition of Complete Care and that the assets of Complete Care were not subject to an
SBA loan lien. Therefore, under MCR 2.603(D)(1), Legend Health presents sufficient facts in its
affidavit to support its meritorious defense which arguably would afford it a defense against
plaintiff’s claim. Bullington, 293 Mich App at 560.
Complete Care also contends that it has a meritorious defense. Namely, under MCR
2.116(C)(8), plaintiff has failed to state a claim against Complete Care because Complete Care
does not have any contractual obligations under the sales agreement.4 As noted, to establish
entitlement to relief under MCR 2.603(D)(1), defendants must state a meritorious defense
supported by an affidavit that presents facts with sufficient particularly, and personal knowledge,
to support the defense. Huntington Nat’l Bank, 292 Mich App at 392. Although defendants
presented the affidavit of Karim to support a meritorious defense for both Legend Health and
Complete Care, the affidavit lacks any particular facts about Complete Care’s proffered defense.
In the affidavit, Karim stated that Legend Health and plaintiff entered into an agreement to
purchase Complete Care. This statement implies that Complete Care is part of the sales agreement,
4
A court may grant a motion for summary disposition under MCR 2.116(C)(8) if “[t]he opposing
party has failed to state a claim on which relief can be granted.” In El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019), our Supreme Court stated: “A motion
under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in
the complaint.” Id. “A motion under MCR 2.116(C)(8) may only be granted when a claim is so
clearly unenforceable that no factual development could possibly justify recovery.” Id. at 160.
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although it stands in a different position than Legend Health or plaintiff. Namely, Complete Care
is the entity that was the subject of the sales agreement rather than a party under any contractual
obligations. Although this may be true and strongly hints that Complete Care may have a valid
defense, relevant caselaw states that the affidavit that provides factual support for the meritorious
defense must be stated with particularity. Id. Karim’s lack of any mention of Complete Care’s
standing within the sales agreement or reference to Complete Care’s defense is detrimental to
Complete Care’s burden in satisfying MCR 2.603(D)(1). Saffian, 477 Mich at 15. Simply put,
the substance of the affidavit exclusively concerns Legend Health, not Complete Care.5 Therefore,
because Complete Care did not present sufficient facts in the affidavit in support of the meritorious
defense, it has not satisfied MCR 2.603(D)(1).
To summarize, under MCR 2.603(D)(1), defendants must satisfy the two prongs of the rule
to set aside the default judgment: (1) good cause and (2) meritorious defense. As discussed above,
Legend Health and Complete Care have established good cause to set aside the judgment.
However, only Legend Health has satisfied the second prong. Under these circumstances, we will
reverse in part and remand the case to the trial court for further proceedings.
2. MCR 2.612(C)(1)(a)
Defendants also argue that the trial court abused its discretion when it denied their motion
to set aside the default judgment under MCR 2.612(C)(1)(a). In particular, they argue that because
they were not given notice of the impending action, nor of the motion of entry of default judgment
until the night before the hearing, they were caught by surprise and were unable to prepare a proper
defense. We disagree.6
MCR 2.612(C)(1) provides many reasons to offer relief from judgment. These include
“[m]istake, inadvertence, surprise, or excusable neglect,” and “[a]ny other reason justifying relief
from the operation of the judgment.” MCR 2.612(C)(1)(a) and (f). “[T]he court may set aside an
5
The concurrence in part, and dissent in part concludes that Complete Care has established a
complete defense. We respectfully disagree. The affidavit of facts required by MCR 2.603(D)(1)
must “state admissible facts with particularity.” Huntington Nat’l Bank, 292 Mich App at 392.
While certain facts may be inferred from the affidavit, it did not state those facts “with
particularity.” Further, while the concurrence in part, and dissent in part bolsters its position by
quoting from plaintiff’s brief on appeal and the sales agreement itself, neither of those documents
were included within or adopted by the affidavit of facts. We believe that our review is properly
limited to the affidavit itself. “A party may not merely announce his position and leave it to us to
discover and rationalize the basis for his claim.” In re Toler, 193 Mich App 474, 477; 484 NW2d
672 (1992).
6
Because we have already granted Legend Health relief, we need not consider this argument as to
that party. However, we will do so for completeness.
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entry of default in accordance with MCR 2.612.” Kowalski v Fiutowski, 247 Mich App 156, 159;
635 NW2d 502 (2001), citing MCR 2.603(D)(3).7 In Alken-Ziegler Inc, our Supreme Court noted:
MCR 2.612(C)(1)(f) states that a court may relieve a party from a final judgment
for any reason justifying relief from the operation of the judgment. However, we
caution that the “any reason justifying relief” language should not be read so as to
obliterate the analysis we have set forth regarding MCR 2.603(D)(1). Otherwise,
the exception in MCR 2.612(C)(1)(f) could swallow the rule set forth in MCR
2.603(D)(1). [Alken-Ziegler, Inc, 461 Mich at 234 n 7.]
Further, we have held:
In order for relief to be granted under MCR 2.612(C)(1)(f), the following three
requirements must be fulfilled: (1) the reason for setting aside the judgment must
not fall under subsections a through e, (2) the substantial rights of the opposing
party must not be detrimentally affected if the judgment is set aside, and (3)
extraordinary circumstances must exist that mandate setting aside the judgment in
order to achieve justice. [Heugel v Heugel, 237 Mich App 471, 478-479; 603
NW2d 121 (1999) (citations omitted).]
Although the relevant case law pertains to MCR 2.612(C)(1)(f), and defendants argue
under MCR 2.612(C)(1)(a), the general warning against using MCR 2.612(C)(1) to bypass the
analysis under MCR 2.603(D)(1) still applies. The crux of defendants’ argument is that because
there was improper service, they were surprised to learn of the ongoing action against them.
However, MCR 2.603(D)(1) establishes a rigorous analysis for the manner in which a default
judgment could be set aside. Setting aside a judgment for merely being surprised about a hearing
the next day, especially without arguing there was any issue with the notice of entry of default
judgment, does not capture the essence of MCR 2.603(D)(1). Further, defendants do not present
any extraordinary circumstance that would justify labeling the effect of the improper service as a
“surprise.” Id. at 479. Labeling improper service as such would swallow the analysis under
2.603(D)(1), the very thing our Supreme Court cautions against. Alken-Ziegler, Inc, 461 Mich at
234 n 7.
Most importantly, a review of a denial of a motion to set aside a default judgment is
reviewed for an abuse of discretion. Saffian, 477 Mich at 12. Specifically, whether the court’s
decision is outside the range of principled outcomes. Id. Although the trial court did not specify
its reasons for denying defendants’ motion under MCR 2.612(C), we may infer that the trial court
did not find merit in the argument. Thus, the trial court’s denial of the motion under MCR
2.612(C)(1)(a) was not outside the range of principled outcomes and the trial court did not abuse
its discretion by not setting aside the default judgment pursuant to MCR 2.612(C)(1)(a).
III. CONCLUSION
7
MCR 2.603(D)(3) provides that “the court may set aside a default and a default judgment in
accordance with MCR 2.612.”
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We reverse the trial court in part and remand to that court for further proceedings consistent
with our opinion. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
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