Opinion
Docket No. 88682.
Decided March 27, 1987. Leave to appeal denied, 428 Mich. 905.
Leonard C. Jaques, P.C. (by Gary W. Baun), for plaintiff.
Kohl, Secrest, Wardle, Lynch, Clark Hampton (by Michael L. Updike), for defendants.
Plaintiff appeals as of right from an order of dismissal pursuant to MCR 2.313(B)(2)(c) for failure to comply with a discovery order. We affirm.
On February 13, 1982, plaintiff was stabbed by defendant Ramos while patronizing defendant Corner Pantry, a party store owned and operated by defendant Camp (and previously co-owned by defendant Spand, who died prior to commencement of litigation). On July 29, 1983, plaintiff commenced suit against defendants alleging assault and battery, failure to maintain a safe premises, violation of the dramshop act and violation of 1980 AACS, R 436.1005.
On February 13, 1985, upon the parties' stipulation, the trial court ordered that plaintiff submit to an independent medical examination to be conducted on March 27, 1985. Plaintiff did not appear for the examination on that date. Defense counsel rescheduled plaintiff's examination for June 24, 1985. Again plaintiff did not appear, and, on this basis, defendants filed a motion for dismissal. When plaintiff's attorney explained that he was having difficulty reaching his client (who was on escape status from the Department of Corrections and had left the state), the trial court denied the motion and entered an order that plaintiff must submit to an independent medical examination by the end of the twenty-sixth month following the filing of the complaint, or September 29, 1985. Additionally, the court ordered that if plaintiff failed to be examined by this time he would not be permitted to introduce any medical evidence at the time of trial, or any evidence of residual problems resulting from his injury.
Plaintiff failed to appear for an examination scheduled for August 20, 1985. When plaintiff failed to appear for a medical examination by the end of September, defense counsel filed a motion for summary disposition pursuant to MCR 2.116, 2.311 and 2.313. At the hearing held on October 11, 1985, plaintiff's counsel again argued his inability to contact plaintiff. The trial court granted the motion pursuant to MCR 2.313 for the reason that plaintiff had failed to comply with a discovery order and it would be unfair to proceed with the case under such circumstances. An order dated October 29, 1985, indicated that the dismissal was with prejudice.
MCR 2.313(B)(2)(c) provides that when a party fails to make discovery the court in which the action is pending may order such sanctions as are just, including:
(c) an order striking pleadings or parts of pleadings, staying further proceedings until the order is obeyed, dismissing the action or proceeding or a part of it, or rendering a judgment by default against the disobedient party.
Under this rule, a trial court may dismiss a case with prejudice so long as noncompliance with a discovery order is willful. To be willful, the failure need not be accompanied by wrongful intent. It is sufficient if it is conscious or intentional, not accidental or involuntary. Krim v Osborne, 20 Mich. App. 237, 241; 173 N.W.2d 737 (1969), lv den 383 Mich. 765 (1970). The standard to be used by this Court in evaluating the sanction of dismissal of a complaint for noncompliance is whether the trial judge abused his discretion. Banaszewski v Colman, 131 Mich. App. 92, 94; 345 N.W.2d 647 (1983). In order for an exercise of judicial discretion to rise to the level of an abuse of that power, the result must be "so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias." Spalding v Spalding, 355 Mich. 382, 384-385; 94 N.W.2d 810 (1959). The term discretion itself involves the idea of choice and abuse of discretion is far more than a difference of judicial opinion between the trial and appellate courts. Id., at 384.
We are satisfied that the trial court did not abuse its discretion in dismissing the instant case with prejudice due to plaintiff's failure to comply with the order to undergo examination. The thrust of plaintiff's argument is that his counsel had great difficulty in locating him, and thus failed to apprise him of the scheduled dates. We find sufficient record evidence that plaintiff had been made aware of scheduled examinations, however, so that his failure to cooperate must be deemed willful. Plaintiff, through counsel, stipulated to submit to an examination. Plaintiff's attorney stated at the August 2, 1985, hearing that he had spoken on the phone with plaintiff in May, 1985, well after the court's order pursuant to the stipulation had been entered. In a letter to plaintiff dated September 5, 1985, plaintiff's counsel indicated that he had notified plaintiff of scheduled medical examinations "on at least three separate occasions." Despite these communications, plaintiff failed to take any steps to satisfy the requirement that he undergo an independent medical examination.
We wish to commend plaintiff's attorney for his vigorous and sincere efforts to obtain the cooperation, and preserve the rights, of his client. Nevertheless, like the trial court, we refuse to condone what on this record must be characterized as consciously dilatory behavior on the part of plaintiff. Because we find no abuse of discretion in the trial court's dismissal with prejudice, the order of the trial court is affirmed.
Affirmed.