Docket No. 95317.
Decided May 12, 1988.
Randall M. Wokas, for plaintiff.
William B. Cope, for defendant.
Defendant appeals from the trial court's order granting plaintiff's motions for sanctions for failure to comply with a discovery order, for summary disposition, and for costs and attorney fees. We affirm.
On May 31, 1977, plaintiff secured a second mortgage on her Westland home in the amount of $21,500. She executed a promissory note for said amount payable to Roland A. Benge Company in monthly installments of $238.69. A $3,305 "brokerage fee" was deducted from the mortgage proceeds which, after closing costs, left plaintiff with $18,000.
Sometime thereafter the note was assigned to defendant.
Plaintiff made approximately eighty-four payments on the note totaling $20,049.96. She then refused to make any additional payments. Consequently, on June 1, 1985, defendant instituted statutory foreclosure proceedings. A sheriff's sale was scheduled for July 17, 1985.
On July 12, 1985, plaintiff filed a complaint in the Wayne Circuit Court seeking a temporary restraining order, a preliminary injunction, and an order to show cause why the mortgage and note should not be discharged as paid in full because the loan violated Michigan's usury prohibition. That same day, a temporary restraining order was issued restraining the sale.
At a hearing held on November 8, 1985, plaintiff requested that the restraining order be continued pending resolution of the usury question. This request was granted. At the same hearing, defendant raised the defense of "good faith purchaser" and requested that the court enter an order requiring plaintiff to depose defendant as regards her status as a good faith purchaser of the note. The order was entered. Thereafter, defendant repeatedly failed to appear at depositions scheduled by plaintiff. Defendant also repeatedly failed to produce any of the documents requested by plaintiff.
On July 16, 1986, plaintiff moved for sanctions against defendant for failure to cooperate in discovery and for failure to comply with the November 8, 1985, discovery order. Plaintiff also moved for summary disposition pursuant to MCR 2.116(C)(9), failure to state a valid defense, and MCR 2.116(C)(10), no genuine issue of material fact.
Defendant filed her response to plaintiff's motions on August 29, 1986. In her response, she did not attempt to explain her failure to appear at deposition.
The trial court subsequently granted plaintiff's motions.
The first question presented to this Court is whether the trial court abused its discretion in striking defendant's answer and affirmative defenses as a sanction for defendant's repeated failure to attend her depositions, in violation of the trial court's discovery order. MCR 2.313(D)(1)(a) provides that if a party fails to appear before the person who is to take his deposition, after being served with proper notice, then the trial court may order such sanctions as are "just," including those sanctions authorized by MCR 2.313(B)(2)(a), (b), and (c). MCR 2.313(B)(2)(c) provides that a trial court may sanction a party by entering an order striking the offending party's pleadings. Imposition of a sanction is a matter within the sound discretion of the trial court. Absent an abuse of discretion, this Court will not reverse. Kurczewski v State Highway Comm, 112 Mich. App. 544, 549-550; 316 N.W.2d 484 (1982), lv den 414 Mich. 957 (1982).
Initially, plaintiff scheduled defendant's deposition for October 16, 1985. Despite receiving notice of the deposition, defendant failed to appear. No explanations were given. Thereafter, at the hearing on plaintiff's request to continue the restraining order, defendant's own counsel requested and received an order requiring defendant to submit to deposition. Following the entry of this order, plaintiff scheduled the taking of defendant's deposition for December 12, 1985, and sent defendant notice of the scheduled deposition. Once again defendant failed to appear. Defendant's deposition was then rescheduled for March 22, 1986. Again, despite receiving notice of the deposition and without supplying an explanation, defendant failed to appear.
At the hearing on plaintiff's motion for sanctions, defense counsel indicated that his client was out of the jurisdiction during the eleven months in which plaintiff attempted to depose her. When pressed, however, defense counsel was unable to explain where defendant had been or why she was unable to return to the jurisdiction. He then admitted that he did not know where defendant was.
On these facts, we conclude that the trial court did not abuse its discretion when it ordered the striking of defendant's answer and affirmative defenses. The sanction was appropriate given defendant's flagrant disregard for the discovery process and for orders of the trial court.
The second question presented to this Court is whether the trial court erred in granting summary disposition to plaintiff. A motion for summary disposition based upon a failure to state a valid defense is tested solely by reference to the pleadings. Summary disposition is proper where the responsive pleading fails to categorically deny a material allegation of the complaint. Pontiac School Dist v Bloomfield Twp, 417 Mich. 579, 585; 339 N.W.2d 465 (1983).
In the instant case, the trial court correctly struck plaintiff's responsive pleading as a sanction for failing to attend her deposition and for failing to comply with the discovery order. Absent the responsive pleading, it cannot be said that defendant categorically denied the material allegations of the complaint. Accordingly, we conclude that defendant did not state a valid defense. Summary disposition was proper.
The third question presented by defendant is whether the trial court's granting of plaintiff's motions infringed upon defendant's due process rights. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Blue Cross Blue Shield of Michigan v Comm'r of Ins, 155 Mich. App. 723, 732; 400 N.W.2d 638 (1986).
Defendant argues that the trial court's actions denied her a meaningful opportunity to be heard. We disagree. During the almost fourteen months that elapsed between the filing of plaintiff's complaint and the entry of the order for summary disposition, defendant was provided with numerous opportunities to be heard in a meaningful manner. She wilfully and repeatedly refused to avail herself of those opportunities. Accordingly, we find no violation of defendant's due process rights.
The final question presented is whether the trial court's award of costs and attorney fees in the amount of $2,771 was excessive. Based upon our review of the evidence introduced at the motion hearing, we find that the award was reasonable. Defendant's argument is without merit.