Dean v. Tucker, Docket No. 104813

• Decision Date: 07 March 1990
• Docket Number: Docket No. 104813
• Citation: 182 Mich.App. 27,451 N.W.2d 571
• Parties: Gloria DEAN, Plaintiff-Appellant, v. Norman D. TUCKER, Frank Mafrice, and Sommers, Schwartz, Silver & Schwartz, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 571

451 N.W.2d 571

182 Mich.App. 27

Gloria DEAN, Plaintiff-Appellant, v. Norman D. TUCKER, Frank Mafrice, and Sommers, Schwartz Silver & Schwartz, P.C., Defendants-Appellees.

Docket No. 104813.

Court of Appeals of Michigan.

Submitted Oct. 11, 1989.

Decided Jan. 17, 1990.

Released for Publication March 7, 1990.

Dennis E. Moffett, Pontiac, for plaintiff-appellant.

Plunkett & Cooney (by Lawrence R. Donaldson and Christine D. Oldani), Detroit, for defendants-appellees.

Before SAWYER, P.J., and WEAVER and NEFF, JJ.

PER CURIAM.

Plaintiff appeals from a grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(8) (failure to state a claim). We reverse.

This case involves a legal malpractice claim which plaintiff brought against defendants, who had represented her in a personal injury action. Briefly, plaintiff claims that defendants committed acts of malpractice which resulted in plaintiff's receiving an inadequate verdict in the underlying lawsuit.

Of more relevance to this appeal, the parties completed discovery and presented themselves for trial on July 17, 1987, pursuant to a notice of trial. Although the parties were ready for trial on that date, the trial court was unable to hear the matter and adjourned trial until November 16, 1987. The trial court did, however, hold a pretrial conference on July 17 and issued a pretrial conference order which, inter alia, indicated that all discovery had been completed and that the parties were to file their witness and exhibit lists within thirty days, being August 6, 1987. Plaintiff did not, however, file her lists until August 27, on which date plaintiff also moved for an extension of time to file her lists. Plaintiff explains the delay as an inadvertent mistake by counsel in marking the deadline for the submission of lists as being August 28.

The trial court denied plaintiff's motion to extend the deadline for filing the witness list and barred plaintiff from presenting witnesses. The trial court thereafter granted defendants' motion for summary disposition on the basis of plaintiff's inability to present expert testimony since plaintiff's expert, R. Scott Vanderford, was one of those witnesses barred from testifying.

Before reaching the merits of plaintiff's appeal, we briefly address an issue raised by defendants in their brief on appeal. Specifically, defendants argue that the question raised on appeal by plaintiff concerning the trial court's refusal to extend the time for the filing of the witness list is not properly before us as plaintiff did not claim an appeal from the trial court's October 28, 1987, order denying the motion to extend time for filing of the witness list. Indeed, plaintiff did not claim an appeal from that order, rather claiming her appeal from the October 28, 1987, order granting summary disposition. Plaintiff claimed her appeal from the correct order.

An appeal of right is available only from a final order. Zimmerman v. Zimmerman, 177 Mich.App. 8, 9-10, 440 N.W.2d 906 (1989); Comm'r of Ins. v. Advisory Bd. of the Michigan State Accident Fund, 173 Mich.App. 566, 589, 434 N.W.2d 433 (1988); Nye v. Gable, Nelson & Murphy 69 Mich.App. 411, 415, 425 N.W.2d 797 (1988). A final order is an order which, by itself or in conjunction with previous orders, disposes of all of the claims of all of the parties or is an order which, although otherwise not final, disposes of at least one claim of one party and is certified as a final order under MCR 2.604(A). Comm'r of Ins., supra, 173 Mich.App. at 589, 434 N.W.2d 433. ¹ Moreover, the final order for purposes of appeal is not even necessarily the last order to be found in the lower court file. Nye, supra, 169 Mich.App. at 415, 425 N.W.2d 797.

Turning to the case at bar, plaintiff's motions to extend the time to file the witness list and the exhibit list disposed of no claims; rather, it was the order granting summary disposition which disposed of all of plaintiff's claims against defendants. Accordingly, it was the order of summary disposition which was the final order and from which plaintiff was required to claim the appeal, which she did. Moreover, having claimed an appeal from the final order (the order granting summary disposition), plaintiff is now free to raise any issue on appeal, including issues related to other orders in the case. Comm'r of Ins., supra, 173 Mich.App. at 589, 434 N.W.2d 433. ² Accordingly, plaintiff, having properly claimed an appeal from the order granting summary disposition, is now free to challenge the other rulings of the trial court, including its refusal to extend time for filing the witness list and the preclusion of plaintiff's witnesses as a sanction for the failure to timely file the list.

The grant of summary disposition was premised on plaintiff's inability to produce an expert witness, and that inability was the result of the trial court's refusal to grant an extension of time to file the witness list and the striking of the witness list as a sanction for plaintiff's tardiness. Therefore, it is the trial court's refusal to grant the extension of time to plaintiff and its decision to strike the witness list which is the crux of this appeal. Accordingly, we turn our attention to determining whether the trial court abused its discretion in barring the testimony of plaintiff's expert witness as a sanction for plaintiff's tardiness in filing the witness list. See Middleton v. Margulis, 162 Mich.App. 218, 223, 412 N.W.2d 268 (1987) (wherein the Court reviewed the discovery sanction of barring the testimony of an expert witness for abuse of discretion where the sanction led to the necessary result of granting summary disposition). We believe that the court in the instant case abused its discretion.

Discovery sanctions are reviewed for an abuse of discretion. Middleton, supra at 222, 412 N.W.2d 268. Where the sanction is the barring of an expert witness resulting in the dismissal of the plaintiff's action, the sanction should be exercised cautiously. Id. at 223, 412 N.W.2d 268.

While it is within the trial court's authority to bar an expert witness or dismiss an action as a sanction for the failure to timely file a witness list, the fact that such action is discretionary rather than mandatory necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate. The corollary to this is that the mere fact that a witness list was not timely filed does not, in and of itself, justify the imposition of such a sanction. Rather, the record should reflect that the trial court gave careful consideration to the factors involved and considered all of its options in determining what sanction was just and proper in the context of the case before it. Houston v. Southwest Detroit Hosp., 166 Mich.App. 623, 629-630, 420 N.W.2d 835 (1987). That is, while rules of practice give direction to the process of administering justice and must be followed, their application should not be a fetish to the extent that justice in a particular case is not done. Higgins v. Henry Ford Hosp., 384 Mich. 633, 637, 186 N.W.2d 337 (1971); Houston, supra, 166 Mich.App. at 630, 420 N.W.2d 835.

Among the factors that should be considered in determining the appropriate sanction are: (1) whether the violation was wilful or accidental, ³ (2) the party's history of refusing to comply with discovery requests (or refusal to disclose witnesses), ⁴ ] (3) the prejudice to the defendant, ⁵ (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice, ⁶ (5) whether there exists a history of plaintiff engaging in deliberate delay, ⁷ (6) the degree of compliance by the plaintiff with other provisions of the court's order, ⁸ (7) an attempt by the plaintiff to timely cure the defect, and (8) whether a lesser sanction would better serve the interests of justice. ⁹ This list should not be considered exhaustive.

Turning to the case at bar, the trial court gave few reasons to justify its decision, merely stating that to grant the request would be unfair and that it would reopen discovery as to all of the witnesses. The court did not explain what unfairness would result from granting plaintiff's request for an extension to file the witness list nor are we aware of any reason why granting the request would necessitate a reopening of discovery since discovery had already been completed prior to the pretrial conference which resulted in the order requiring plaintiff to file the witness list.

Moreover, with respect to the factors listed above, we see no reason to justify the imposition of such a harsh sanction as imposed by the trial court. There is no indication from the record that plaintiff's failure to timely file the witness list was wilful, rather it was apparently an inadvertent mistake by counsel in marking the deadline for submitting the list. Furthermore, by defendants' own admission, they learned during the course of discovery that plaintiff would be calling Vanderford as an expert witness and Vanderford had previously been deposed. In fact, it would appear from the record that defendants were aware of the existence of all of the witnesses listed by plaintiff on her tardy witness list no later than July 17, 1987, the date the parties presented themselves for trial.

In addition, we are aware of no problems with plaintiff in the past in terms of impeding discovery or dragging out litigation, nor is there any reason to believe that granting plaintiff's request to file the late witness list would have necessitated...