*1 Grubоr v Kortidis ENTERPRISES, GRUBOR INC v KORTIDIS 16, 1992, Docket No. 137955. Submitted December at Detroit. Decided 4,1993, at October 9:05 a.m. Inc., Enterprises, brought an action in the Circuit against Kortidis, alleging Court Constantine breach of a con- 1988, August tract and fraud. The action was filed in but the 1990, 6, did not file its witness list until November and 19, court, did not move to admit it until December 1990. The J., Chylinski, January R. James denied the motion on days 7, 1991, January three before the scheduled trial. On court, J., Foley, Judge Chylinski’s Thomas ruled that order witnesses, any including parties, barred the prejudice, citing entered the action with the fact that the case been had 1988. The plaintiffs cоurt then denied the motion to set aside the order of plaintiff appealed. dismissal and to reinstate claim. The Appeals The Court of held: 1. A trial court has discretion to allow to once being a witness list or is stricken barred filed. In exercis- discretion, ing its the court should determine whether prove position can solely the elements itsof on the basis of the parties’ testimony documentary not, other evidence. If the action should be dismissed. 2. refusing The trial court did not abuse its discretion plaintiffs representatives testify. allow the To do so would opеned discovery have the door to circumvention of the rule corporate plaintiffs. refusing 3. The trial court did not abuse its discretion in testify. allow the defendant not did show that it would be able case on the basis testimony representatives defendant’s if the testifying. Allowing witnesses were bаrred from undis- References 2d, 51-54, 60, Am Jur Witnesses §§ Disclosure; Court; Discovery; See ALR Index under Discretion Witnesses. 201 op Opinion the Court negated rebuttal witnesses to would have closed imposed. dismissing the its discretion in 4. The court did abuse *2 prejudice. action with Affirmed. J., dissenting, Murphy, the its stated that trial abused parties barring as in the the discretion dismissing Although the court had witnesses and the action. authority that it to sanction the in the manner the did, by imposing inappropriately its exercised discretion to deter- without first factors relevant appropriate than the fact that mination an sanction other had 1988. The trial court’s the case been and case the action should be reversed remanded. — —
Trial Witnesses Witness Lists. testify once a Trial courts have discretion to allow filed; being exercising is in witness list stricken or barred discretion, whether the that a court should detеrmine position solely can the elements of its on basis not, parties’ documentary evidence; testimony other
the action should be dismissed. Cooper, plaintiff. Patricia M. for the Martin), (by Martin, for J. P.C. Victor J. Victor defendant. Murphy Marilyn Jansen, P.J., Before: Kelly, JJ. right
Marilyn appeals as оf Kelly, from order ing Circuit Court dismiss- prejudice its action for breach of contract appeal, plaintiff argues that, not- and fraud. On withstanding list, it file a its failure to witness on its own should have been allowed as an adverse witness. behalf and call defendant asserts, also, the trial court еrred in dis- It missing on the
the action fact based judge to admit circuit court refused another list. affirm. witness v Kortidis Opinion of the Court August,
The instant action was filed 1988. reassigned judges was case to different on Judge Chylinski several occasions. James held a September 24, settlement conference on 1990. The settlement conference worksheet nota- contained judge’s handwriting indicating tions in the list. absence of witness Plaintiff filed its first on witness list November 1990. Plaintiff did not move to it until admit December 1990.
Judge Chylinski plaintiff’s denied motion to ad- Friday, January 4, mit the witness on list part long delay His decision was bаsed in filing it and the fact that trial was scheduled for following Monday. only regard- His comment ing parties’ ability at trial absent a question plaintiff’s was list his counsel: you anyone except "How could call the defen- dant?” *3 subsequently
Defendant filed motion to dismiss prejudice, arguing plaintiff with that was unable аny Judge Chy- to call as a of witnesses result hearing January 7, linski’s order. At Judge plaintiff Foley, argued before Thomas that Judge Chylinski’s order did bar parties. Judge disagreed. Foley He dismissed the prejudice; case with since case had been August, any problems plaintiff had doing. resulted from its own Plaintiff set moved to aside the order of dis- origi- missal and to reinstate the claim. Plaintiff’s appeared nal counsel an described in-cham- meeting Judge Chylinski bers he had had Judge Foley’s defense counsel after Al- dismissal. Judge legedly, Chylinski deny never intended to plaintiff that, a trial. Defense counsel admitted Judge Chylinski probably list, absent a witness parties would have allowed to be called as Judge Foley plaintiff’s witnesses. denied motion. App Opinion the Court of corporation. plaintiff He recognized awas that He testify permit this reasoned through corporate agеnts allow would without witnesses” a thousand to "call list. a witness ever
i argues not file a that, if it could even parties list, allowed to call it should be witness By rule, unlisted wit- local court as witnesses. except may trial, the court as not be called at ness good LCR Circuit cause shown. orders for parties were named 2.301. plaintiffs this they However, are consid- list. witness Judge Chylinski witnesses,” because ered "unlisted belatedly. request to file its list denied Stepp discovery. lists are an element Witness Dep’t Resources, 157 Mich of Natural objective The ultimate 778; 404 NW2d pretrial to all make аvailable is to parties, trial, all relevant facts in advance of might trial. Id. into evidence at be admitted which purpose "trial lists is avoid surprise.” Id., legitimate may agree exist reasons
permitting parties if no trial even at parties First, are has been filed. witness list generally originаl known and are adversaries prevent This should from the outset. to each other occurring surprise unlisted when the element of supra. testify. Stepp, called to See witnesses are disallowing *4 to when the Second, the being prevented or from list is stricken witness filed is trial court Allowing еquivalent a a dismissal. the of routinely an action whenever to dismiss appears inconsistent with list is stricken a witness op- discovery discretionary sanction the various Kortidis Opinion of the Court tions available to it. See Houston v Southwest Detroit Hosp, App 623, 627-629; 166 Mich (1987). Refusing lists to NW2d allow witness sеparate granting a be filed dismissal are options. discovery Id, trial We hold the court has discretion to testify allow stricken its once the witness list is exercising being barred from filed. In
or discretion, the should trial court determine whether position the can the elements its parties’ testimony on based the documentary any not, other If evidence. the action should be dismissed.
In this the trial court refused to allow representing corporation testify. individual When plaintiff corporation, any a is number of could on individuals We behalf. conclude that refusing the trial court did not abuse its discretion plaintiff’s representatives
to allow
testifying.
opened
To do so would have
door
by corporate
discovery
circumvention of the
rule
plaintiffs.
plaintiff
individual,
When the
is an
complaint
defendant knows
face
identity
testifying plaintiff.
the
so when the
is not
This
cоrporation.
is a
that,
testified,
Defendant asserts
if defendant
impeach
could call rebuttal witnesses to
testimony.
Telephone
See Pastrick v General
Co,
243, 246;
we Affirmed.
Jansen, P.J., concurred. (dissenting). I would reverse the
Murphy, dismissing plaintiff’s of the circuit court prejudice rеmand for a determina- action with considering options proper tion of the of this the circumstances available case. I dissent. therefore August action in Defen- Plaintiff filed this 5, 1988. The case his answer on dant filed October assigned judges. subsequently various was any pretrial not indicate that schedul- record does ing July moved order was issued. plaintiff’s compel inter- defendant’s answers to production. request rogatories for document interrog- eventually plaintiff’s answered Defendant September 1989, and the motion atories compel The case wаs mediated was dismissed. February 1990, was and a settlement conference September con- 24, 1990. The settlement held on Kortidis by Murphy, J. notations, ference worksheet contains presiding judge, indicating written the ab- sence of a witness list and that counsel prepare trying had pretrial stated she was a final cooper- order but that defendant was not ating. *6 6, filed its witness list on November
1990, and moved to admit the witness list on prepared 19, December 1990. Plaintiff also "joint” pretrial statement, a filed with- out the assistance of defendant. The circuit court plaintiffs belatedly denied motion to admit filеd witness list. Defendant then moved to dismiss prejudice, arguing the action with that was unable call witnesses as a result hearing circuit order. After court’s on the mo- previous ruling tion, the circuit court held that the disallowing plaintiff’s list barred calling any including parties. witnesses, from The circuit court then dismissed the action with prejudice, reasoning pend- the case had been ing 1988. The circuit court denied plaintiff’s motion to set aside the dis- missal. agree
I with in contention that this by case, circuit court abused its discretion barring plaintiff calling parties and dis missing litigation, At the action. time of this 2.301(A) provided scheduling MCR that absent a year order, ended one after the 1 addition, the defendant’s answer. In Cir amended, 1, MCR 2.301 has since been effective October addition, although in effect at the time relevant to this MCR 2.401, provides, pertinent amended effective October now part: (I) Witness Lists. (1) No later than the time directed under (B)(2)(a), subrule shall file and serve witness lists. 201 by Murphy, provides, applies 2.301 in this case and
cuit LCR pertinent part: pursuant to a the court orders otherwise Unless shown, good cause counsel status conference or for exchange all witnesses parties shall lists of for all to be called two months at the trial not later than discovery. completion of
before the date set for experts, so include who shall be This list shall designated. may not be called An unlisted witness trial, good for except as the court orders cаuse at shown. comply
Generally,
where a
fails
discovery rules,
has within its dis-
the trial court
authority
the action. Hous-
cretion the
to dismiss
Hosp,
App 623,
Detroit
ton v Southwest
is also some
628;
whethеr exercising authority. Tucker, this Dean v 182 Mich (1990). Although App 27, 32; 451 is NW2d authority of the trial court to bar a within the or an action as a sanction for witness dismiss timely list, action is to file a witness this failure discretionary mandatory and, there- rather than (2) may The court witness not listed testifying prohibited from at
acсordance with this rule will be
trial
except upon good
cause shown.
v Kortidis
by Murphy,
fore, necessitates the trial court’s
the
appro-
the
circumstances of
case to determine the
priate
re
$1,159,420,
sanction. In
Forfeiture of
(1992);
134, 144;
Dean,
justice. supra, Dean, 32-33. only In this the record reflects that by factor trial considered court was that pending case had been ing since 1988. Review- plaintiffs record, there is no evidence that delay attempt wilful, was did to cure oversight list, albeit belat- edly. By pro- contrast, defendant never vided Further, with a witnеss list. there showing prejudiced by was no plaintiffs that defendant was approximately list,
late witness filed two months before trial. These factors are considered impose valid reasons to not the severe sanction imposed in this case. See In re Forfeiture of supra. аlthough $1,159,420, addition, this case August 1988, was the causes for delay bear consideration. The record reflects respond timely defendant failed to interrogatories, necessitating plaintiffs motion to *8 compel. coop- Defendant also failed to preparation еrate of the by Murphy, J. required by pretrial "joint” the circuit statement although Thus, do not condone we court. pace timely list, the slow failure to file its witness litigation to this attributed cannot be factor. hold that the circuit court
I would therefore inappropriately its discretion whеn exercised barring plaintiff imposed the sanction of as witnesses and considering the relevant factors case without first considering severe whether a less and without appropriate. I would sanction would have been reviewing record and hold that after further factors, the sanction im- the relevant posed court’s discre- was an abuse of circuit and remand. tion. I would therefore reverse