Muntean v. City of Detroit, Docket No. 78071

• Decision Date: 29 August 1985
• Docket Number: Docket No. 78071
• Citation: 372 N.W.2d 348,143 Mich.App. 500
• Parties: Elisabeta MUNTEAN and Petru Muntean, Plaintiffs-Appellees, v. CITY OF DETROIT, Defendant-Appellant. 143 Mich.App. 500, 372 N.W.2d 348
• Court: Court of Appeal of Michigan — District of US

Page 348

372 N.W.2d 348

Elisabeta MUNTEAN and Petru Muntean, Plaintiffs-Appellees, v. CITY OF DETROIT, Defendant-Appellant.

Docket No. 78071.

143 Mich.App. 500, 372 N.W.2d 348

Court of Appeals of Michigan.

Submitted Feb. 19, 1985.

Decided June 4, 1985.

Released for Publication Aug. 29, 1985.

[143 MICHAPP 502] Stegman & Kelin, P.C. by Alexander M. Kelin, Southfield, for plaintiffs-appellees.

David N. Smokler, Asst. Corp. Counsel, Detroit, for defendant-appellant.

Before WAHLS, P.J., and SHEPHERD and QUINNELL ^*, JJ.

PER CURIAM.

Defendant appeals as of right from an order of judgment for plaintiffs and an order denying its motion to set aside the judgment. GCR 1963, 528.3. The judgment was entered by the Chief Judge of the Wayne County Circuit Court following defendant's failure to reject a mediation evaluation within 40 days. WCCR 403.7(e), 403.15(a). We reverse and remand for further proceedings.

Plaintiffs alleged in their complaint that plaintiff Elisabeta Muntean sustained personal injuries when she slipped and fell over an unnatural accumulation of ice and snow located between the sidewalk and street along West Jefferson Avenue and that the mishap resulted from defendant's negligence. The matter was referred to a mediation panel. The panel issued an evaluation of $200,000. The defense attorney asked counsel for plaintiffs whether he would consider extending the time for acceptance or rejection of the mediation evaluation beyond the 40-day period. Plaintiffs' attorney responded that he could not do so without client approval.

The parties received notice of the 40-day limitation upon receipt of the mediation award. The 40 [143 MICHAPP 503] days expired on February 1, 1984. Neither party submitted a notice of rejection.

On February 14, defense counsel filed a late rejection of the mediation evaluation, claiming that he had just learned that he had failed to reject the evaluation. Defense counsel also stated that during the 40-day period he had determined that he wanted to conduct further discovery before deciding whether to adopt or reject the award. He stated that he never intended to accept the mediation evaluation. Rather, the file was placed in a cabinet, where it escaped his attention until after the deadline. Counsel also claimed to have been engrossed in an unusually busy schedule at the time.

Defendant filed a motion to set aside the acceptance of the mediation evaluation. The motion was heard by the circuit judge assigned to pre-trial proceedings in the matter. WCCR 6.1. The assigned judge did not rule on the motion, but indicated that she was inclined to grant it. Plaintiffs' attorney argued that the motion was premature because the official "notification of acceptance" had not been received by the parties and no judgment could enter. The judge agreed that a judgment must enter before the motion to set aside acceptance could be heard ¹ and adjourned the matter until entry of judgment. Subsequently, both parties received the notification of acceptance and an attached notice which directed that the judgment be submitted to the Chief Judge within 10 days. The Chief Judge would enter the judgment upon appearance and payment of the judgment fee.

Plaintiffs' attorney submitted a draft judgment [143 MICHAPP 504] and the same was entered by the Chief Judge. Defendant then brought a motion before the Chief Judge to set aside the judgment and/or for late rejection of mediation. The record divulges the following exchange between the Chief Judge and defense counsel at the motion hearing:

"THE COURT: I understand that, but the purpose, and I have to strike some sort of balance between the purpose of the rule which is to achieve finality and to remedy any injustice. And I'm not satisfied that--I mean--if I granted your motion, that [sic ] I would remedy an injustice.

"The case was evaluated by three competent mediators. They placed an evaluation of 200 thousand dollars and you did not reject within the 40-day period. In fact, you did not reject until how many days after?

"MR. SMOKLER: 14 days after.

"THE COURT: Expired.

"MR. SMOKLER: 14 days.

"THE COURT: You knew that.

"MR. SMOKLER: I didn't know until Mr. Burnette in my office came up to me, and told me he talked to Mr. Kelin, and that we had accepted. And I went and got the file and found there was a slip.

"THE COURT: Well, you were careless. You were careless, right?

"MR. SMOKLER: Yes, I guess you might say that I made a mistake, but I--but I--but I diligently pursued the file. I setup [sic ] depositions, I setup [sic ] medical examinations.

"THE COURT: I know that. I know that. I'm well aware of that.

"MR. SMOKLER: To do discovery.

"THE COURT: However, I do not find that you have set forth grounds where I can invoke my discretion under 528. I really don't."

From this language, it appears that the Chief Judge did not exercise his discretion against defendant. [143 MICHAPP 505] Rather, he indicated that under the facts before him he had no discretion.

In this appeal, defendant argues that the Chief Judge lacked authority to rule on the motion to set aside the mediation acceptance and/or judgment and that the Chief Judge abused his discretion by denying the motion even if he had such authority. We agree with the first of defendant's assertions. Since there was no authority for the Chief Judge to rule on the motion, we remand this matter to the assigned judge for reconsideration of defendant's motion.

We can find no provision of the general or local court rules which furnishes the Chief Judge with the authority to rule on motions to set aside mediation acceptances or judgments entered pursuant to such acceptances. Apparently, he has assumed the task of entering judgments based upon an acceptance of mediation awards as a matter of policy. This appears to be an administrative or ministerial act involving no exercise of judgment or discretion. However, the Chief Judge has also assumed the task of ruling on motions to vacate mediation awards where he has entered judgments on the original assumption that they were uncontested.

As authority for this practice, plaintiffs refer to the wide range of the Chief Judge's authority, delineated in GCR 1963, 925.5(c). There is no specific allowance for the policy at issue here. The Chief Judge "shall act in conformity with the general court rules, administrative orders of the supreme court, and local court rules". GCR 1963, 925.5(a). Under WCCR 6.1(b), the assigned judge "shall handle all preliminary matters until trial of the case begins".

We do not hesitate to affirm the policy insofar as it allows the Chief Judge to enter a judgment [143 MICHAPP 506] which is uncontested by the parties. In this respect, the policy serves to relieve the circuit bench of a purely administrative task, a function well within the Chief Judge's authority to supervise the work of that court. GCR 1963, 925.5(c), supra. But the issue posed by a motion to set aside a judgment or mediation acceptance calls for an exercise of judicial discretion. GCR 1963, 528.3. Unless the assigned judge was absent or otherwise unable to act, her authority over the matter continued to the date of trial, if any. WCCR 6.1(b), supra; Totzkay v. Dubois (After Remand), 140 Mich.App. 374, 364 N.W.2d 705 (1985).

Plaintiffs argue that defendant waived the issue of the Chief Judge's authority by not raising it below and by pursuing the motion before the Chief Judge. We disagree. At the time defendant brought the motion, it was believed that the circuit court could not set aside a mediation acceptance, but had to await entry of judgment to grant relief. Cooper v. Automotive Finishes, Inc., 109 Mich.App. 530, 533, 311 N.W.2d 414 (1981). This belief led the assigned judge to withhold relief until judgment entered on the mediation award. The notification of acceptance required submission of the proposed judgment to the Chief Judge. Thus, defendant acted in conformity with the local practice. In addition, defendant filed a motion for rehearing, arguing that the assigned judge had authority to set aside the acceptance. The Chief Judge denied the motion for rehearing. We are not convinced by plaintiffs' argument that defendant wishes to engage in "forum shopping". The assigned judge had already indicated she would grant the motion, so there was no need for defendant to "shop" any further. We are satisfied that the issue is properly brought to this Court.

Our conclusion that the Chief Judge lacked [143 MICHAPP 507] authority to rule on the motion dictates a remand to the assigned pre-trial judge for reconsideration of that motion. As noted above, the issue calls for an exercise of judicial discretion. Our standard of review is as follows:

" * * * It is within the discretion of the trial court to set aside an acceptance of a mediation award prior to entry of a judgment upon the award. MGM Brakes Division of Indian Head, Inc v Uni-Bond, Inc, 417 Mich 905; 330 NW2d 853 (1983). Both before and after a judgment has been entered pursuant to the acceptance of a mediation award, relief is available as with any other judgment under GCR 1963, 528.3 and a trial court's decision to grant or deny relief will be reviewed only for an abuse of discretion. Coolman v D B Snider, Inc, 129 Mich App 233; 341 NW2d 484 (1983); Cooper v Automotive Finishes, Inc, 109 Mich App 530, 534; 311 NW2d 414 (1981)." Young v. Everlock Taylor Corp., 137 Mich.App. 799, 802, 359 N.W.2d 213 (1984).

Defendant urges that the judgment be set aside by reason of "mistake, inadvertence, surprise, or excusable neglect". GCR 1963, 528.3(1); MCR 2.612(C)(1)(a). We conclude that the assigned judge should have the opportunity to determine the merits of defendant's motion in the first instance. In fact, we are not convinced from the record that either a grant or a denial of the motion would constitute an abuse of discretion.

There is no single standard by which to measure the exercise of judicial...