Michigan Court of Appeals; Docket #357006; Unpublished
Judges Murray, O’Brien, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion, Link to Concurrence
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Court of Claims Litigations
SUMMARY:
In this 2-1, unpublished, per curiam decision (Murray, concurring in part, dissenting in part), the Court of Appeals affirmed the trial court’s denial of Defendant State of Michigan’s (“the State”) motion for summary disposition, seeking dismissal of Plaintiff Martha Cavill’s auto negligence action against it. The Court of Appeals held that Cavill complied with MCL 600.6431(2)(d)’s requirement that a notice of intention to file a claim against the State contain ‘[a] signature and verification by the claimant before an officer authorized to administer oaths,’ by signing her notice of intent and having her signature notarized by a notary public. MCL 600.6431(2)(d) does not require—as the State argued—that verification be in the form set forth in MCR 1.109(D)(3).
Martha Cavill was rear-ended by a police officer and subsequently filed a notice of intent to file a claim against the State of Michigan with the Court of Claims. Her notice complied with the various requirements set forth in MCL 600.6431, but in her subsequent lawsuit, the State argued that she failed to satisfy the verification requirement set forth in subpart (2)(d). Specifically, the State relied on a footnote in Progress Mich v Attorney General, 506 Mich 74 (2020), in which the Supreme Court indicated that a verification under MCL 600.6431(2)(d) must be made in the form set forth in MCR 1.109(D)(3)(b). For reference, MCR 1.109(D)(3) provides:
“Verification. Except when otherwise specifically provided by rule or statute, a document need not be verified or accompanied by an affidavit. If a document is required or permitted to be verified, it may be verified by
(a) oath or affirmation of the party or of someone having knowledge of the facts stated; or
(b) except as to an affidavit, including the following signed and dated declaration:
‘I declare under the penalties of perjury that this _________ has been examined by me and that its contents are true to the best of my information, knowledge, and belief.’ Any requirement of law that a document filed with the probate court must be sworn may be also met by this declaration.”
The State moved for summary disposition, based on, among other arguments, its argument regarding the verification requirement of MCL 600.6431(2)(d), but the trial court denied its motion.
The Court of Appeals affirmed the trial court’s denial of the State’s motion, noting, preliminarily, that the footnote in Progress Mich was dicta, and therefore not binding. The Court then held that Cavill complied with the verification requirement of MCL 600.6431(2)(d) because MCR 1.109(D)(3) provides that a document may be verified either by subpart (a)—an oath or affirmation of the party or of someone having knowledge of the facts stated—or by subpart (b). Not only that, but MCL 600.6431(2)(d)—and its requirement that ‘[a] signature and verification by the claimant before an officer authorized to administer oaths’—actually mandates that verification be in the form prescribed in (a), not (b).
“The syntactical structure of MCR 1.109(D)(3), indicates that Subparts (a) and (b) are separated by the disjunctive word ‘or.’ This Court has explained that the ‘use of the disjunctive word ‘or’ indicates an alternative or choice between two things.’ Pike v Northern Mich Univ, 327 Mich App 683, 697; 935 NW2d 86 (2019) (quotation marks and citation omitted). MCR 1.109(D)(3), therefore, must be understood as providing two alternative means of verification. The document may be verified by (1) an ‘oath or affirmation of the party or of someone having knowledge of the facts stated’ as permitted under MCL 1.109(D)(3)(a), or (2) by including a signed declaration in the form specified in MCR 1.109(D)(3)(b). Accordingly, a claimant may choose either means of verification described under MCR 1.109(D)(3) unless MCL 600.6431 prohibits one of the available choices. The plain and unambiguous language of MCL 600.6431(2)(d) restricts the choice a claimant has respecting verification of a claim or notice of intention to file a claim because it specifies that a claim or notice must contain a ‘signature and verification by the claimant before an officer authorized to administer oaths.’ Therefore, the alternative means of verification by declaration in the form specified under MCR 1.109(D)(3)(b) is not an option available to a claimant who files a claim or notice of intention to file a claim against the state.”
The Court next held that the notary public who notarized Cavill’s signature qualified as “an officer authorized to administer oaths’ for purposes of MCL 600.6431(2)(d)’s, and that Cavill’s notice, therefore, complied fully with the requirements of MCL 600.6431(2)(d).
Judge Murray concurred with the majority’s decision to affirm the trial court’s denial of the State’s motion for summary disposition, but disagreed with the majority’s finding that a notice of intent to sue constitutes a ‘document’ for purposes of MCR 1.109(D). He argued that a notice is not a ‘document’ as that term is understood in the court rule, and that MCR 1.109(D) does not apply at all as a result.
