Comstock Construction Co. v. LHG Investment Co. , 126 Mich. App. 408 ( 1983 )

126 Mich. App. 408 (1983) 337 N.W.2d 82

COMSTOCK CONSTRUCTION COMPANY
v.
LHG INVESTMENT COMPANY

Docket No. 61797.

Michigan Court of Appeals.

Decided June 7, 1983.

Running, Wise & Wilson (by Patrick J. Wilson), for plaintiff.

Jaffe, Snider, Raitt & Heuer, P.C. (by Stephen M. Atkinson), for LHG Investment Company.

Before: DANHOF, C.J., and ALLEN and D.F. WALSH

PER CURIAM.

On October 5, 1981, the trial court entered an order of default against defendant LHG Investment Company (defendant) and an order dismissing defendant's counterclaim. Defendant appeals as of right from the trial court's refusal to set those orders aside.

The facts in this case are not in dispute. On June 20, 1980, plaintiff filed a complaint in the District Court for the 86th Judicial District seeking to recover $9,297 it claimed that defendant owed for construction work it performed on a condominium unit owned by defendant. Defendant denied that it owed the amount claimed because it contended that plaintiff failed to perform the work properly. It also filed a counterclaim in which it alleged that plaintiff was in breach of the agreement and that plaintiff had made numerous material misrepresentations to defendant and that as a result thereof defendant suffered the loss of rental income. Defendant claimed that its loss exceeded the jurisdictional amount for a district court action. Therefore, the case was removed to the Leelanau County Circuit Court, 13th Judicial Circuit, on May 29, 1981.

A pretrial conference was scheduled for 10 a.m. on October 5, 1981. Prior to that date, the attorney for defendant contacted the court and requested that the conference be conducted by telephone. The court agreed to that procedure. However, it informed defendant's attorney that he should notify plaintiff's attorney. When plaintiff's attorney was notified, he responded that he intended to appear in person because plaintiff had filed a motion for a protective order with respect to certain interrogatories filed by defendant, which motion was noticed for hearing at the same time. It is undisputed that the responsibility for initiating the telephone conference was given to defendant's attorney.

For reasons which are not apparent on the record, defendant's attorney believed that the time for which the hearing was scheduled was 11 a.m. on October 5, 1981, despite the fact that he had received notice that it was scheduled for 10 a.m. At 11 a.m. on that date he placed a call to the circuit court for the purpose of participating in the conference. Plaintiff's attorney personally appeared at 10 a.m. and remained in court for almost one hour. When defendant's attorney called at 11 a.m., he was informed that because of his failure to call at 10 a.m., a default had been entered on plaintiff's claim and defendant's counterclaim had been dismissed. Following a hearing which was held on December 7, 1981, the trial court denied defendant's motion to set the orders aside.

It is clear that the failure of an attorney to appear after due notice has been given is a sufficient ground for either the entry of a default or an involuntary nonsuit. Butler v Cann, 62 Mich. App. 663; 233 NW2d 827 (1975), Cavataio v City-Wide Cleaners & Dyers, Inc, 23 Mich. App. 419; 178 NW2d 831 (1970). However, in our opinion, the action taken by the trial court was too harsh under the circumstances presented and constituted an abuse of discretion. Cook v Haynes, 92 Mich. App. 288; 284 NW2d 479 (1979).

The trial court acknowledged that defendant had set forth a meritorious defense to plaintiff's claim. There was no claim that defendant's counterclaim was made in bad faith. The court's concern for docket control did not justify the action taken. The case had been on the circuit court docket for a period of less than 5 months. Any inconvenience which was caused to plaintiff by the delay of only one hour could have been remedied by the imposition of costs. Cook, supra, p 292.

We cannot accept the trial court's conclusion that a series of interrogatories posed by defendant to plaintiff evidenced an intent on the part of defendant to harass plaintiff. Although some of the questions posed in those interrogatories might have been irrelevant to these proceedings, the appropriate remedy would have been to grant plaintiff's request for a protective order and to award plaintiff costs. GCR 1963, 306.2, 309.5. Defendant's presence was unnecessary to permit the court to take such action.

The orders of the trial court are reversed and the case is remanded for trial on the claim and the counterclaim. No costs.