Brooks Williamson & Assocs. v. Braun

• Docket Number: 357170
• Decision Date: 12 May 2022
• Parties: BROOKS WILLIAMSON & ASSOCIATES, INC., and BROOKS B. WILLIAMSON, Plaintiffs-Appellants, v. THOMAS BRAUN, DONALD BERNINGER, and CHRIS KUNKLE, Defendants-Appellees, and STACY BRAUN BERNINGER, GREG SCHMULT, BWA CONSULTING, BERNINGER WETLAND ASSOCIATES, and AARON BROWN, Defendants.
• Court: Court of Appeal of Michigan — District of US

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BROOKS WILLIAMSON & ASSOCIATES, INC., and BROOKS B. WILLIAMSON, Plaintiffs-Appellants, v. THOMAS BRAUN, DONALD BERNINGER, and CHRIS KUNKLE, Defendants-Appellees, and STACY BRAUN BERNINGER, GREG SCHMULT, BWA CONSULTING, BERNINGER WETLAND ASSOCIATES, and AARON BROWN, Defendants.

No. 357170

Court of Appeals of Michigan

May 12, 2022

UNPUBLISHED

Oakland Circuit Court LC No. 2019-178641-CB

Before: Jansen, P.J., and Cavanagh and Riordan, JJ.

PER CURIAM

In this commercial business dispute, plaintiffs Brooks Williamson & Associates, Inc. ("the company"), and Brooks B. Williamson, appeal as of right, challenging the trial court's orders denying their motion to extend discovery granting defendants' motion in limine to exclude evidence not disclosed during discovery, excluding proposed expert testimony, striking exhibits submitted by plaintiffs in their response to defendants' motion for summary disposition granting defendants summary disposition under MCR 2.116(C)(10), denying plaintiffs' motion to amend their first amended complaint, and granting defendants' motion for sanctions.^[1] For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

Plaintiffs filed this action in December 2019. Their first amended complaint, filed on April 24, 2020, alleged that defendants Thomas Braun, Donald Berninger, and Chris Kunkle were all employees of the company when, in June 2017, they "surreptitiously and without prior notice or approval" conspired to move the company's offices from Wixom, Michigan, to Berninger's home in Plymouth. Plaintiffs alleged that before June 2017, Berninger offered to purchase the company from Williamson for $100, 000, but Williamson declined the offer. Plaintiffs accused defendants of engaging in a "carefully calculated and strategic campaign of deception, malfeasance, and defalcation" regarding plaintiffs' clients. They alleged that Berninger formed a competing company, BWA Consulting, LLC, which was done to confuse the company's clients and governmental agencies.

In April 2021, the trial court granted defendants' motion for summary disposition under MCR 2.116(C)(10), but provided that plaintiffs could seek leave to file an amended complaint by April 28, 2021. On May 3, 2021, the trial court issued an opinion and order denying plaintiffs' motion for leave to file a second amended complaint. On May 10, 2021, the trial court granted defendants' motion for costs and attorney fees. In addition to challenging each of these orders, plaintiffs also challenge several pretrial rulings pertaining to discovery.

II. THE TRIAL COURT'S RULINGS REGARDING DISCOVERY

Plaintiffs argue that the trial court abused its discretion by (1) denying their motion to extend discovery, (2) granting defendants' motion in limine to exclude evidence not produced during discovery and denying plaintiffs' motion for reconsideration of that order, and (3) striking exhibits submitted in support of plaintiffs' response to defendants' motion for summary disposition because they had been requested but not produced during discovery.

A. STANDARDS OF REVIEW

This Court reviews for an abuse of discretion a trial court's decision regarding a party's motion to extend discovery, Decker v Trux R Us, Inc, 307 Mich.App. 472, 478; 861 N.W.2d 59 (2014), a trial court's decision on a motion in limine, Bellevue Ventures, Inc v Morang-Kelly Investment, Inc, 302 Mich.App. 59, 63; 836 N.W.2d 898 (2013), a trial court's decision on a motion for reconsideration, Sanders v McLaren-Macomb, 323 Mich.App. 254, 264; 916 N.W.2d 305 (2018), and a trial court's decision on a motion to strike, Belle Isle Grill Corp v City of Detroit, 256 Mich.App. 463, 469; 666 N.W.2d 271 (2003). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Decker, 307 Mich.App. at 478.

B. ANALYSIS

MCR 2.301(B)(1) allows a court to set "the time for completion of discovery . . . by an order entered under MCR 2.401(B)." MCR 2.401(B)(2)(a)(v) provides that the court may enter a scheduling order that establishes a schedule for discovery to be completed. When considering a request for discovery, a court "should consider whether the granting of discovery will facilitate or hamper the litigation." Nuriel v Young Women's Christian Ass'n of Metro Detroit, 186 Mich.App. 141, 146; 463 N.W.2d 206 (1990). In McDonald Ford Sales, Inc v Ford Motor Co, 165 Mich.App. 321, 330; 418 N.W.2d 716 (1988), this Court explained that in determining whether to grant a motion to extend discovery,

the trial court should consider whether the granting or extension of discovery will facilitate rather than impede the litigation. Factors such as the timeliness of the request, the duration of the litigation and the possible prejudice to the parties should also be considered.

Plaintiffs' primary argument in support of their motion to extend discovery was that defendant Berninger did not produce client invoices for BWA Consulting, LLC, that he had addressed during his deposition. In his deposition, Berninger stated that he did not bring invoices from BWA Consulting for the requested period of April 2016 to March 2019 because he did not know where they were. He last saw the documents in early 2018. Berninger denied during his deposition that he had a client list of BWA Consulting, LLC. At the conclusion of the deposition, plaintiffs' counsel asked Berninger to continue to look for a list of BWA Consulting projects, its client list, and the invoices. Following his deposition, Berninger did produce a list of BWA Consulting clients.

The trial court's denial of plaintiffs' motion to extend discovery was within the range of reasonable and principled outcomes. Plaintiffs filed this action in December 2019, and while the specific nature of their claims and the defendants named in the action changed between the filing of the initial complaint and the first amended complaint, which was filed in April 2020, the thrust of plaintiffs' allegations was that defendants engaged in impermissible competitive behavior while employed by the company. The trial court initially entered a scheduling order that required discovery to be completed by June 5, 2020, but later extended that period to November 5, 2020. It would have been reasonable for plaintiffs to seek the BWA Consulting client list and invoices before the notices for defendants' depositions were filed on October 28, 2020, just one week before the discovery cutoff date, or for plaintiffs to file an appropriate motion to compel if requests for those documents were not satisfied. Moreover, plaintiffs did not file their motion to extend discovery until December 17, 2020, six weeks after the deadline for the completion of discovery. Considering that plaintiffs were dilatory in pursuing discovery, that the discovery deadline had been extended previously, and that plaintiffs' motion to further extend the discovery deadline was filed well after the discovery cutoff date, the trial court did not abuse its discretion by denying plaintiffs' motion.

Similarly, to the extent that plaintiffs wanted to call an information technology (IT) expert who had not been disclosed previously, MCR 2.401(I)(2) provides that a trial court may preclude a party from calling as a witness at trial an individual who was not named in the party's witness list, unless the party makes a showing of good cause for failing to name the witness. The trial court observed that not only did plaintiffs fail to name a potential IT expert in their witness list, they still were not able to definitively name a potential expert or provide any contact information. In addition, they did not attempt to make a showing of "good cause" for allowing the late addition of an IT expert.

Likewise, while plaintiffs promised in their response to produce documentation "within a reasonable time" that they had not produced during discovery, including (1) information that Williamson referred to in his deposition, and (2) the results of the inspection of laptop computers defendants used while employed by plaintiffs, discovery had already concluded on November 5, 2020 and trial was scheduled to begin within 45 days.

Before imposing a sanction for a discovery violation, a court should consider what is just and appropriate under the circumstances, and consider the following factors as relevant:

(1) whether the violation was wilful or accidental; (2) the party's history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice; (5) whether there exists a history of plaintiff's engaging in deliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court's order; (7) an attempt by the plaintiff to timely cure the defect[;] and (8) whether a lesser sanction would better serve the interests of justice. This list should not be considered exhaustive. [Duray Dev, LLC v Perrin, 288 Mich.App. 143, 165; 792 N.W.2d 749 (2010).]

The trial court observed that this case had been pending since December 2019, and during the ample extended discovery period, plaintiffs had wilfully failed to provide requested documents "for months." The court also found that plaintiffs failed to make a genuine effort to cure the defect, and trial was only 45 days away. The trial court considered the relevant factors and concluded that allowing plaintiffs to use undisclosed documents or witnesses would result in "a trial by ambush." We are not persuaded that the trial court abused its discretion by holding that the unnamed IT expert could not be called as a witness, or that requested...