Summary
In Hope, the case upon which Strauch and The Talon Group rely, the plaintiff brought an action against a notary public for alleged improper notarization. 162 N.W.2d at 919.
Summary of this case from Ardent Serv. Corp. v. Grand Beach Real Estate Inv., LLCOpinion
Docket No. 2,200.
Decided July 23, 1968.
Appeal from Wayne, Rashid (Joseph G.), J. Submitted Division 1 March 7, 1967, at Detroit. (Docket No. 2,200.) Decided July 23, 1968.
Complaint by Wallace Hope against Lilyan Victor and Ohio Casualty Insurance Company, a surety, for improper notarization of certain documents, and cross-complaint by Ohio Casualty Insurance Company against Lilyan Victor for indemnification. Summary judgment for defendants. Plaintiff appeals. Affirmed.
Nussbaum, Stacey Munger ( James H. Crum, of counsel), for plaintiff.
Paul E. Carroll, for defendant and cross-plaintiff Ohio Casualty Insurance Company.
Victor Covensky, for defendant and cross-defendant.
Plaintiff Wallace Hope leased certain premises from Mr. and Mrs. Weiss. Mr. Hope failed to make payments for the rent due for the months of May and June, 1963, and the Weisses commenced an action for recovery of possession of the premises. CLS 1961, § 600.5634 (Stat Ann 1962 Rev § 27A.5634); CLS 1961, § 600.5637 (Stat Ann 1962 Rev § 27A.5637). Judgment for the Weisses was entered by the circuit court commissioner on June 7, 1963 and plaintiff's eviction under a writ of restitution followed.
Mr. Hope brought this present action against Lilyan Victor, a notary public, for alleged improper notarization of the affidavit to the complaint before the commissioner and of the return on the proof of service of the notice to quit the premises. In both instances of alleged official misconduct by Lilyan Victor, it is claimed that she allowed her name to be affixed to the jurat by the affiant without having personally witnessed the signature or administered the oath as required by CL 1948, § 55.112 (Stat Ann 1961 Rev § 5.1046).
As to the signature on the affidavit attached to the complaint in the commissioner's court, plaintiff alleges that Mr. Covensky did sign the affidavit as attorney for the Weisses and did also sign the name of Lilyan Victor as notary. The complaint states that Lilyan Victor authorized Mr. Covensky over the telephone to sign her name to the jurat and that Mr. Covensky never did personally appear before Mrs. Victor. Such conduct, it is claimed, was in violation of the duties of office of notary and was a proximate cause of the eviction which subsequently ensued.
Likewise it was alleged that the notarization on the return to the proof of service was made in the same manner, by Lilyan Victor giving permission to Maurice Victor to sign her name to the jurat. Mr. Victor was co-counsel for the Weisses.
Plaintiff's action is for damages for injuries suffered by reason of the eviction. It is alleged that these injuries were the proximate result of Lilyan Victor's misfeasance. The Ohio Casualty Insurance Company is joined as surety on Mrs. Victor's notary bond and cross-claims against Lilyan Victor for indemnification for any damages it might be made to suffer in the principal lawsuit.
Defendants moved for summary judgment in the trial court under the provisions of GCR 1963, 117.2 (1) for the reason that plaintiff failed to state a claim on which relief can be granted because he has failed to show any proximate causal connection between the breach of duty by the notary and the eviction on the writ of restitution. The trial judge granted the motion and plaintiff here seeks review of that judgment.
The pertinent paragraphs of the complaint state:
"That as a direct result of her wrongfully exercising her duties as a notary public, Lilyan Victor caused the plaintiff, Wallace Hope, to suffer great damages.
"That as a direct result of her wrongfully notarizing the proof of service and affidavit to the complaint to recover possession, a writ of restitution was issued and plaintiff, Wallace Hope, was forced out of possession of the premises.
"That as a direct and proximate result of Lilyan Victor's wrongfully notarizing the documents, Wallace Hope has been forced to suffer the following damages:"
The question now before this Court is whether, as a matter of law, on the allegations made, the breach of the notary and the defective jurats may be the proximate cause of the writ of restitution issued by the circuit court commissioner. We agree with the trial judge that the answer is in the negative and that without such proximate relationship the violation of duty of the notary is insufficient on which to base (an entitlement to) relief.
It is settled in this State (and indeed generally throughout the jurisdictions) that breach of the office of notary does not give rise to an action unless such breach was the proximate cause of the injuries sustained. MacBride v. Schoen (1932), 121 Cal.App. 321 ( 8 P.2d 888); People, for Use of Doran, v. Butler (1889), 74 Mich. 643. In People, for Use of Young, v. Nederlander (1913), 177 Mich. 434, 436, the Court stated:
See 66 CJS, Notaries, p 626, § 11 et seq.
"If the officer who takes an acknowledgment makes a false certificate, an action on his official bond for the damages sustained by reason thereof will lie against him or his sureties, though it seems that such recovery may be had only where the damages sustained are the proximate result of the false certificate."
The present case is novel in that the wrongful conduct was separated from the alleged injury by a final order of a court of competent jurisdiction. The causation of events were the defective jurat, the action of the circuit court commissioner, and the issuance of the writ of restitution.
We see no need to decide whether a false jurat to the return on the proof of service destroys the vitality of that instrument. GCR 1963, 104(2) governs the requirements of proof of service. The committee comment to Rule 104 states that a defective return is not jurisdictional (1 Honigman Hawkins, Michigan Court Rules Annotated [2d ed], p 64) and that the return is a mere formality where notice was transmitted to the defendant in fact. In this case no claim is made that the means of giving notice was not in accordance with the statutory procedures.
It is not claimed that Mr. Covensky did not in fact sign the complaint and affidavit made in the commissioner's court or that another notary would not have verified the signature upon proper oath. In our opinion an improper notarization should not be regarded as the proximate cause of injury where the one who purported to sign the document did in fact sign, and was prepared to properly swear before a notary; and we so hold.
In Radcliff v. Clemons (1954, Tex Civ App), 265 S.W.2d 182, the court stated:
"The record contains no evidence that Shaw's certification proximately caused appellant's injury. On the contrary, the only evidence is to the effect that the certification was in fact true, there being no contention made that the prior owner did not sign the title certificate, which in itself negatives the contention that Shaw's certification of that fact could have been the cause of appellant's injury."
Thus we find that the acts of Lilyan Victor were not the proximate cause. Covensky and Victor did in fact sign the documents and would simply have had them notarized anyway. In this regard our present case is markedly distinct from a situation where the notary certified a forged signature to a document which led to the injury complained of ( People, for Use of Doran, v. Butler, supra; People, for Use of Young, v. Nederlander, supra). We are in accord with the general view that no liability attaches for an improper notarization unless there be shown to be a causal relationship to the injury. North Detroit Land Co. v. Rominiecki (1932), 257 Mich. 239; Annotation, 17 ALR2d 948.
The cases may be read as holding the notary liable where a certification is made to a forgery because another notary, in the exercise of due care, would not have certified the forged signature and the injury would not have resulted. See United States Fidelity Guaranty Co. v. State, for Use of Ward (1951), 211 Miss. 864 ( 53 So.2d 11) and Koste v. Maryland Casualty Co. of Baltimore (1961, Mo), 344 S.W.2d 55. A similar situation is presented where the notarization gives legal effect to a true signature but not intended to be legally effective. State, ex rel Nelson, v. Hammett (1947), 240 Mo App 307 ( 203 S.W.2d 115), but it has been said that it must appear that the notarization rather than the signature itself was relied upon. Lowe v. Robin (1958), 203 Tenn. 105 ( 310 S.W.2d 161).
In Atlas Security Co. v. O'Donnell (1930), 210 Iowa 810 ( 232 N.W. 121), an improper notarization of an automobile sales contract was held not the proximate cause of the purchaser's injuries since the seller did not own the automobile and no lien would have been created even with a proper notarization. In Immerman v. Ostertag (1964), 83 N.J. Super. 364 ( 199 A.2d 869), the improper notary was held not the proximate cause where the court found that the forger would have sworn the oath if so requested by the notary. In Governor of Wisconsin, ex rel. Kadin, v. Bristol (1938), 229 Wis. 95 ( 281 N.W. 686) the court affirmed dismissal of a complaint against a notary for want of proximate causation. In that case the notary certified the statement of a surety but left blank spaces where he was to state assets and liabilities. Proximate causation, the court held, was the subsequent act of a third person in filling in the spaces with false information and not the act of the notary in making the certification. (281 NW, p 687).
We cannot say, nor allow a jury to find, that the eviction proximately flowed from an improper notarization where it appears that the signatures were in fact genuine and any other notary would have certified the same on the jurat.
Under the circumstances plaintiff has failed to state a claim for relief and summary judgment was proper.
Affirmed. Costs to appellee.
LESINSKI, C.J., and LEVIN, J., concurred.