Banaszewski v. Colman

• Decision Date: 16 March 1984
• Docket Number: Docket No. 65440
• Citation: 345 N.W.2d 647,131 Mich.App. 92
• Parties: Elaine BANASZEWSKI, Plaintiff-Appellant, v. Richard J. COLMAN, d/b/a Surgical Associates, Martin Place Hospital East, Jerome B. Markowitz, D.O., and Dr. Levitt and Dr. Gorenstein, jointly and severally, Defendants- Appellants. 131 Mich.App. 92, 345 N.W.2d 647
• Court: Court of Appeal of Michigan — District of US

Page 647

345 N.W.2d 647

Elaine BANASZEWSKI, Plaintiff-Appellant, v. Richard J. COLMAN, d/b/a Surgical Associates, Martin Place Hospital East, Jerome B. Markowitz, D.O., and Dr Levitt and Dr. Gorenstein, jointly and severally Defendants- Appellants.

Docket No. 65440.

131 Mich.App. 92, 345 N.W.2d 647

Court of Appeals of Michigan.

Submitted May 11, 1983.

Decided Dec. 8, 1983.

Rehearing Denied Feb. 1, 1984.

Released for Publication March 16, 1984.

[131 MICHAPP 93] Charfoos, Christensen, Gilbert & Archer, P.C. by Adrienne G. Southgate and Ronald L. Gilbert, Detroit, for plaintiff-appellant.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Ernest R. Bazzana and Thomas M. O'Leary, Detroit, for Levitt & Gorenstein.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. by Mark D. Willmarth, Detroit, for Richard J. Colman.

Barbier, Goulet & Petersmarck, P.C. by Ralph W. Barbier, Jr., Mount Clemens, for Martin Place Hospital-East.

Before HOOD, P.J., and V.J. BRENNAN and DeWITT, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from the dismissal, with prejudice, of her suit alleging medical malpractice. The dismissal was based on plaintiff's failure to comply with a pretrial order requiring her to file a specific statement setting forth the "area of malpractice concerning each defendant and defendant's failure to perform in relation thereto".

Plaintiff concedes that a trial judge has the authority to dismiss an action where a party has failed to comply with a court order. Plaintiff claims, however, that its pretrial statement did [131 MICHAPP 94] comply with the judge's order. We disagree and affirm.

GCR 1963, 504.2 permits the court to dismiss any action in which a plaintiff fails to comply with its orders. Dismissal may be ordered where a party fails to comply with a court's order to amend pleadings to make them more specific. S & S Excavating Co., Inc. v. Monroe County, 37 Mich.App. 358, 362, 366-367, 194 N.W.2d 416 (1971). In the present case, the trial judge's order to plaintiff to make her pretrial statement more specific was a valid one. Dismissal was an acceptable remedy for failure to comply. This Court need only decide whether the trial judge abused his discretion by deciding that plaintiff failed to comply with his pretrial order.

Plaintiff argues that dismissal was appropriate only if her complaint and pretrial statement, read together, failed to state a claim. We do not believe that the trial judge's authority to dismiss a case for a party's failure to comply with his orders is limited to complaints which fail to state a claim. GCR 1963, 301.1 requires a trial court to direct the parties' attorneys to appear before it for a pretrial conference. It may direct the attorneys to state and simplify the factual and legal issues to be litigated. GCR 1963, 301.1(1). The same provision allows the court to direct the parties to consider the formal amendment of pleadings or to order such amendment if desirable or necessary. If the trial court's power to direct pretrial summaries is limited to directing the amendment of pleadings, the language requiring the court to direct the attorneys to "state and simplify the factual and legal issues to be litigated" is rendered nugatory. We believe that GCR 1963, 301 was intended to allow the judge to require a far more specific [131 MICHAPP 95] statement of the issues to be litigated. One of the primary goals of the pretrial conference is to illuminate and narrow the issues to be litigated, thereby shortening trial proceedings. See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 6. See also Applebaum v. Wechsler, 350 Mich. 636, 650, 87 N.W.2d 322 (1957). A trial judge has the authority to direct a party to make a pretrial summary which is more specific than a pleading sufficient to state a claim. Where discovery has been completed (as in this case), such a claim should not be difficult to make. A trial judge must have the discretion to treat a party's failure to make an adequate pretrial statement as a failure to participate in pretrial proceedings. Where such a failure occurs, the trial judge must have the discretion to enforce his orders by appropriate sanctions. See Kromat v. Vestevich, 14 Mich.App. 291, 165 N.W.2d 428 (1968).

In attempting to determine if the trial judge abused his discretion by dismissing plaintiff's complaint, we have reviewed the entire court file, particularly plaintiff's various complaints and the pretrial statement and amendment thereto. We are satisfied that good and substantial reasons existed for the court's order to plaintiff to specify more fully the factual and legal bases of her claims. Plaintiff had not adequately specified the standard of care, how the standard was breached, theories of causation, or the type of injury. ¹ She [131 MICHAPP 97] had not named an expert witness from whom this information could be obtained. Subsequent to defendant's motions to dismiss, plaintiff did not seek to amend the pretrial statement to expose her claim more fully. We believe that the trial judge did not abuse his discretion by deciding to dismiss plaintiff's complaint for failure to comply with his order.

Affirmed. Costs to appellees.

* David S. DeWitt, 42nd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

1 The relevant pleadings state:

"8. That the defendant[s], * * * and their agents and employees, were negligent and violated the standard of care in regard to the treatment, diagnosis and surgical procedures performed upon the plaintiff in one or more of the following ways:

"(a) They did not follow the standard of care in regard to performing a tubal ligation.

"(b) That they violated...