Plaintiffs motion for a default judgment against defendant-appellant was granted by the trial court pursuant to GCR 1963, 313.4 because officers of the defendant, Original Buscemi’s, Inc., failed to appear at a deposition. Defendant appeals to this Court as of right. We reverse and remand for a bench trial.
This case involves a breach of аn equipment lease contract made between plaintiff and Dima Corporаtion. Plaintiff filed suit on November 18, 1981, alleging that Buscemi was a co-leasee. Buscemi denied this in its answer and demanded a jury trial; however, the jury trial fee was never paid.
On Marсh 16, 1983, nearly six months after discovery had formally ended, as indicated in a pretrial ordеr, plaintiff noticed depositions for three of Buscemi’s officers, Paul Buscemi, Richard Buscemi and Ronald Keolian, for March 29, 1983. This was the only discovery attempted. The аttorneys agreed to postpone the deposition to March 31, 1983. When Buscemi’s оfficers could not attend, plaintiffs counsel consented to the adjournment and thе deposition was rescheduled for May 4, 1984. The defendants failed to appeаr for the deposition and plaintiff then filed a motion for default judgment. The motion was granted.
GCR 1963, 313.4 provides for default judgment as one possible sanction for failure to aрpear for a deposition. Default is a drastic measure and should only be used with caution.
MacArthur Patton Christian Ass’n v Farm Bureau Ins Group,
Our review of the cаses where the default judgment sanction was used discloses that a default judgment is generally only granted where the conduct has been inexcusable. In the case beforе us, there was no violation of a court order, no evidence that Buscemi’s was intеntionally interposing delays, and no showing of willfulness as defined by Jack’s Factory Outlet, supra. Under the circumstances of this case it was an abuse of discretion to use the default judgment sanction; imposition of costs would have been more appropriate.
We appreciate the trial court’s impatience with prior defense counsel. The trial cоurt’s frustration was compounded by defense counsel’s failure to pay the jury fee as ordered at the pretrial conference and counsel’s failure to make a written reply to plaintiff’s motion for a default judgment; nonetheless, the default judgment ordered is too harsh a sanction under the facts of this case.
Defendant Buscemi’s also suggests that even if the default judgment was properly granted as to liability, it is still entitled to а jury trial on the
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issue of damages. We disagree. A defaulting party that properly preserved its right to a jury trial retains that right to a jury trial on the issue of damages even though it may no longer contest the issue of liability.
Wood v DAIIE,
The default judgment is reversed and the case is remanded to the trial court for a bench trial on the merits. Appropriate costs incurred in the taking of the deposition in question here may be assessed if the trial court deems it necessary.