Mink v. Masters, Docket No. 146044

• Decision Date: 21 March 1994
• Docket Number: Docket No. 146044
• Citation: 514 N.W.2d 235,204 Mich.App. 242
• Parties: Robert E. MINK, individually and as a shareholder on behalf of Bio-Tech Disposal, Inc., Plaintiff-Appellee, v. Richard MASTERS, Albert Rogers, Richard Hartzell, All Pro Corporation and Cooksey Group, Inc., Defendants-Appellants, and Stephen T. Falzone and Burley Barton Misko & Falzone, P.C., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 235

514 N.W.2d 235

204 Mich.App. 242

Robert E. MINK, individually and as a shareholder on behalf of Bio-Tech Disposal, Inc., Plaintiff-Appellee, v. Richard MASTERS, Albert Rogers, Richard Hartzell, All Pro Corporation and Cooksey Group, Inc., Defendants-Appellants and Stephen T. Falzone and Burley Barton Misko & Falzone, P.C. Defendants.

Docket No. 146044.

Court of Appeals of Michigan.

Submitted Nov. 18, 1993, at Detroit.

Decided March 21, 1994, at 9:35 a.m.

Released for Publication April 27, 1994.

Hardy, Lewis, Pollard & Page, P.C. by James R. Hand and Ann L. Vanderlaan, Birmingham, for Robert E. Mink.

Pentiuk, Miller & Waterman, P.C. by Dennis H. Miller, Taylor, for Richard Masters, Albert Rogers, Richard Hartzell, All Pro Corp., and Cooksey Group, Inc.

Before DOCTOROFF, C.J., and SAWYER and C.J. SINDT, ^* JJ.

SAWYER, Judge.

Defendants appeal from a default judgment entered in favor of plaintiff in the amount of $240,000 plus interest following defendants' failure to comply with court orders compelling discovery. We affirm in part and reverse in part.

Defendants first argue that the trial court abused its discretion by entering a default judgment against them for failure to comply with discovery requests. We disagree. We review this issue to determine whether the trial court abused its discretion in entering the default judgment. Frankenmuth Mutual Ins. Co. v. ACO, Inc., 193 Mich.App. 389, 396, 484 N.W.2d 718 (1992).

The court rules specifically authorize default judgment as a sanction for discovery abuses. MCR 2.313(B)(2)(c). However, it is a drastic measure and should be used with caution. Frankenmuth, supra at 396, 484 N.W.2d 718. Before imposing the sanction of default judgment, the trial court should consider whether the failure to respond to discovery requests extends over a substantial period, whether there was a court order directing discovery that was not complied with, the amount of time that elapsed between the violation and the motion for default judgment, and whether willfulness has been shown. Id. at 396-397, 484 N.W.2d 718. The court should also evaluate other options before concluding that a drastic sanction is warranted. Id. at 397, 484 N.W.2d 718. The sanction of default judgment should be employed only when there has been a flagrant and wanton refusal to facilitate discovery and not when failure to comply with a discovery request is accidental or involuntary. Id.

In the case at bar, plaintiff requested certain financial records of Cooksey Group, Inc., which request defendants failed to honor. Plaintiff filed a motion to compel production of the documents and, approximately two months after the initial request, the court held a hearing on the motion and granted the motion to compel and ordered defendants to supply the documents and to answer interrogatories within thirty days. Defendants failed to comply with the order and, almost four weeks after the deadline, plaintiff filed a second motion to enforce the court's earlier order compelling defendants to produce the documents. Another hearing was held, and defendants were given an additional seven days after that hearing to supply the requested information. Defendants again failed to comply with the court's order and another motion was brought, the hearing on that motion being held two weeks after the deadline set in the second order. Following that hearing, the trial court granted the default judgment. Approximately 3 1/2 months later, the court heard defendants' motion for reconsideration to set aside the default judgment, at which time defendants had still not complied with the discovery orders. Finally, we note that the court had specifically warned defendants in its second order that a failure to comply with the discovery request would result in the entry of a default judgment.

Under the facts of this case, we are not persuaded that the trial court abused its discretion in granting a default judgment as a sanction for failure to comply with discovery. Defendants were afforded a number of opportunities to comply with the discovery request and failed to do so and had even been warned that a failure to comply with the discovery request would result in a default judgment, yet they still chose not to comply with the discovery request. Under these facts, it was within the trial court's discretion to grant a default judgment for defendants' blatant refusal to comply with the discovery request and the court orders compelling compliance.

Next, defendants argue that the trial court erred in denying their right to a jury trial on the issue of damages. We agree. A default does not constitute a waiver of a jury trial in a civil action. Wood v. DAIIE, 413 Mich. 573, 583-584, 321 N.W.2d 653 (1982). Thus, where it is necessary for the trial court to hold a hearing on the issue of damages, the defendant has a right to a jury trial if that right has been preserved even though the defendant has defaulted. Id. It is not suggested in this case that the trial court could determine damages without holding a hearing and, in fact, the trial court did hold a hearing on the issue of damages on October 11, 1991. The question is whether defendants properly preserved their right to a jury trial so as to afford them that right at the October 11 hearing.

In this case, plaintiff filed a demand for a jury trial and defendants filed a document entitled "Reliance on Plaintiffs' Jury Demand," but did not file their own separate jury demand. We believe that defendants' right to a jury trial was adequately preserved.

MCR 2.508(D)(3) provides as follows:

A demand for trial by jury may not be withdrawn without the consent, expressed in writing or on the record, of the parties or their attorneys.

This rule clearly requires that a withdrawal of a jury demand must be with the consent of all parties or their attorneys, not just by those parties that filed a jury demand. That is, once one party has filed a jury demand, all other parties may rely on that jury demand and need not independently file their own demand for a jury trial. This interpretation of the court rule is consistent with the authors' comment in 3 Martin, Dean & Webster, Michigan Court Rules Practice, p. 148:

b. Withdrawal. If a timely demand for trial by jury is filed by one of the parties, all of the parties who are interested in the issues for which jury trial has been demanded may rely on that demand and need not make an additional demand of their own. This point is emphasized by MCR 2.508 which provides that a demand for trial by jury may not be withdrawn without the consent, expressed in writing or on the record, of all the parties to the action interested in that issue.

Thus, where a plaintiff has filed a jury demand, the defendant need do nothing further to preserve its right to a trial by jury. Rather, any future waiver of a jury trial by the plaintiff can only be done with the defendant's consent. ¹ Therefore, we conclude that because defendants had a right to rely upon plaintiff's demand for a jury trial, their right to a jury trial was preserved absent their own waiver of the right to a jury trial. Because, as the Court explained in Wood, supra, a default judgment does not constitute a waiver of the right to a jury trial, defendants' default in the case at bar did not constitute a waiver of that right.

Accordingly, absent an express waiver by defendants of the right to a jury trial, the trial court was obligated to honor defendants' right to a jury trial on the issue of damages. The trial court, therefore, erred in conducting a hearing instead of a jury trial on the issue of damages. Therefore, we set aside the trial court's judgment and remand the matter to the trial court to conduct a...