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Klco v. Dynamic Training Corp.

Michigan Court of Appeals
Nov 19, 1991
192 Mich. App. 39 (Mich. Ct. App. 1991)


Docket No. 118174.

Decided November 19, 1991, at 9:00 A.M. Leave to appeal sought.

Abood Doyle, P.C. (by Thomas A. Doyle), for Richard J. Abood.

Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by Mary T. Nemeth), for Cassandra Anderson.

Before: McDONALD, P.J., and MacKENZIE and HOLBROOK, JR., JJ.

Third-party plaintiff, Richard J. Abood, appeals as of right from a December 15, 1988, order granting summary disposition in favor of third-party defendant, Cassandra Anderson, of Abood's slander claim. He also appeals from the court's May 31, 1989, order imposing court costs and attorney fees on him and his attorney as sanctions under MCR 2.114(E) and (F) and MCL 600.2591; MSA 27A.2591. We affirm.

Abood first claims error in the court's grant of summary disposition pursuant to MCR 2.116(C)(8) and (10). However, we find this issue is not properly before the Court. The order granting summary disposition was dated December 15, 1988, and was certified as a final order. MCR 7.204 requires that an appeal of right be taken within twenty-one days of the entry of the judgment or order appealed from. This claim of appeal was not filed until June 14, 1989, well beyond the twenty-one-day period. This Court is therefore without jurisdiction to address this issue.

Although we recognize a previous panel of this Court in Comm'r of Ins v Advisory Bd of the Mich. State Accident Fund, 173 Mich. App. 566; 434 N.W.2d 433 (1988), has interpreted MCR 7.204 as permitting, but not requiring, the filing of an appeal from an order certified as final within twenty-one days, we find such an interpretation unsupported by the language of the rule. Additionally, even were the interpretation of the rule in Accident Fund proper, Abood's appeal would still be untimely. The Court in Accident Fund found timely the filing of an appeal within twenty-one days of the certified order or one filed after entry of the order disposing of all claims. Abood failed to meet either of these requirements, having filed his claim more than twenty-one days after the entry of the certified order and before entry of the order disposing of all claims. We note, in hopes of preventing further protraction of this lawsuit, that were the issue properly before us, we would find the court's grant of summary disposition proper. Although it is not clear whether Michigan would adopt a principle of absolute privilege regarding communications made by a witness to an attorney in connection with a judicial proceeding, Abood failed to plead or present a claim of malice in avoidance of qualified privilege.

Abood next claims the court erred in imposing sanctions upon him and his attorney under MCL 600.2591; MSA 27A.2591 and MCR 2.114(D)(2) because it found that the slander claim was not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. We do not find the court's finding clearly erroneous. In re Goehring, 184 Mich. App. 360; 457 N.W.2d 375 (1990). As noted by the court, Abood failed to cite precedent from any jurisdiction in support of his position that Anderson's statement was not privileged. Careful research would have established the complete lack of support for his position. We find the court's award of reasonable attorney fees and costs proper under both the court rule and the statute.

Likewise, we find no abuse of discretion in the amount of sanctions ordered by the court. The record reveals the court considered proper factors, see Wood v DAIIE, 413 Mich. 573; 321 N.W.2d 653 (1982), in determining the amount of the fees and disallowed any it felt were unnecessary or inaccurate.

Lastly, we reject Abood's claim that he was given insufficient opportunity to be heard with regard to the imposition of sanctions.

Analysis of what process is due in a particular proceeding depends on the nature of the proceeding and the interest affected by it. Artibee v Cheyboygan Circuit Judge, 397 Mich. 54; 243 N.W.2d 248 (1976); Kennedy v Bd of State Canvassers, 127 Mich. App. 493; 339 N.W.2d 477 (1983). Generally, due process in civil cases requires notice of the nature of the proceeding, Van Slooten v Larsen, 410 Mich. 21; 299 N.W.2d 704 (1980), an opportunity to be heard in a meaningful time and manner, Blue Cross Blue Shield of Mich. v Comm'r of Ins, 155 Mich. App. 723; 400 N.W.2d 638 (1986), and an impartial decision maker, Crampton v Dep't of State, 395 Mich. 347; 235 N.W.2d 352 (1975); Harter v Swartz Creek (On Reh), 68 Mich. App. 403; 242 N.W.2d 792 (1976). The opportunity to be heard does not require a full trial-like proceeding, but does require a hearing to the extent that a party has a chance to know and respond to the evidence. Westland Convalescent Center v Blue Cross Blue Shield of Mich, 414 Mich. 247; 324 N.W.2d 851 (1982).

We find Abood and his attorney were given a sufficient opportunity to be heard when the court held the hearing on the motion to impose sanctions.


Summaries of

Klco v. Dynamic Training Corp.

Michigan Court of Appeals
Nov 19, 1991
192 Mich. App. 39 (Mich. Ct. App. 1991)
Case details for

Klco v. Dynamic Training Corp.

Case Details


Court:Michigan Court of Appeals

Date published: Nov 19, 1991


192 Mich. App. 39 (Mich. Ct. App. 1991)
480 N.W.2d 596

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