Premises liability; Motion for relief from a default judgment; MCR 2.612(C)(1); Successor liability; Mere continuation; Commonwealth Land Title Ins Co v Metro Title Corp; Service of process; MCR 2.105(D); Knowledge of action; MCR 2.612(B); Proof of service; MCR 2.104(A)(1); Insufficient service; MCR 2.116(C)(3)

The court held that the trial court did not abuse its discretion by setting aside the default based on mistake or innocent misrepresentation about defendant’s ownership status, but erred by finding defendant lacked sufficient notice and by granting defendant summary disposition on service grounds. Plaintiff sued after allegedly slipping and falling at defendant’s hotel, but defendant did not own the hotel when plaintiff was injured and acquired it roughly two years later. On appeal, the court first held that the trial court properly set aside the default because plaintiff’s pleadings mistakenly alleged that defendant owned or possessed the hotel at the time of injury. The court rejected plaintiff’s successor-liability theory because, although several business features remained the same, the trial court determined there was “a legitimate sale of the business and its assets to an entirely new ownership group,” with different officers, no ownership continuity, and no evidence that the transaction was anything other than arm’s length. The court next held that plaintiff did not properly serve defendant by certified mail because a private corporation with a resident agent generally requires personal service. But the court also held that defendant had knowledge of the action because its resident agent received the summons and complaint and forwarded them to defendant’s president by e-mail, and his failure to open the e-mail did “not excuse his receipt of the documents.” Because the resident agent was authorized to receive service and gave written acknowledgment of receipt, the court found “proof of service” under MCR 2.104(A)(1). Thus, while the default was properly set aside on the ownership/mistake ground, summary disposition for insufficient service was improper. Affirmed in part, reversed in part, vacated in part, and remanded.