Preview:

STATE OF MICHIGAN
COURT OF APPEALS


EUGENE VODOPYANOV and ANATOLY MANT, Plaintiffs-Appellees, v KELLER WILLIAMS REALTY NORTHVILLE MARKET CENTER, a/k/a NORTHVILLE MARKET CENTER, Defendant-Appellant, and MARINA SHEFFER, a/k/a MARINA VALTSEV, ALEX VALTSEV, and RAPID ENTERPRISES, L.L.C., Defendants.

UNPUBLISHED June 12, 2008

No. 274460 Oakland Circuit Court LC No. 06-076762-CK

Before: Murray, P.J., and Bandstra and Fort Hood, JJ. PER CURIAM. Defendant Keller Williams Realty Northville Market Center1 appeals by leave granted from two circuit court orders. The first order denied defendant's motion to set aside a default pursuant to MCR 2.603(D). The second order denied defendant's motion for relief pursuant to MCR 2.612(C). We affirm. Plaintiffs filed this action in August 2006, to recover funds that allegedly were used as an earnest money deposit for a real estate transaction. Plaintiffs alleged that defendant improperly released the funds to a third party after the transaction failed to close. Plaintiffs' complaint was

Although there are other defendants in this action, defendant Keller Williams Realty is the only party-defendant involved in this appeal. Therefore, the singular term "defendant" is used to refer to defendant Keller Williams Realty.

1

-1-


personally served on defendant on August 31, 2006. Defendant did not file an answer or otherwise respond within 21 days as required by MCR 2.108(A)(1). On September 25, 2006, a default was entered against defendant. On September 27, 2006, defendant filed a motion alleging that there was good cause to set aside the default because its attorney mistakenly believed that service was accomplished by certified mail, thereby giving it an additional week to respond to plaintiffs' complaint. Defendant also filed an affidavit averring that it had a meritorious defense to plaintiffs' action. The trial court determined that counsel's mistake or inadvertence was insufficient to establish good cause and, therefore, denied defendant's motion. Defendant subsequently filed a motion requesting relief under MCR 2.612(C)(f), which the trial court also denied. On appeal, defendant first argues that the trial court failed to exercise its discretion to determine whether there was good cause to set aside the default. Defendant additionally argues that, under the circumstances, a decision to set aside the default would not have been an abuse of discretion. "[A]lthough the law favors the determination of claims on the merits, ... it also has been said that the policy of this state is generally against setting aside defaults and default judgments that have been properly entered." Alken

Download EUGENE VODOPYANOV V KELLER WILLIAMS REALTY NORTHVILLE MKT CENTER.pdf

Michigan Law