DocketNumber: Docket Nos. 11176, 11177
Citation Numbers: 40 Mich. App. 705
Judges: Fitzgerald, Hara, McGregor
Filed Date: 5/25/1972
Status: Precedential
Modified Date: 9/9/2022
Plaintiffs appeal from the judg
When plaintiffs appeared for trial on January 19, 1971, defendant’s supplemental interrogatories remained unanswered, the documents had never been produced, and plaintiffs’ motions to strike the supplemental interrogatories and set aside the orders for production of documents were still pending. The record indicates that no orders disposing of these motions were ever filed.
"Further, a motion was made by both plaintiffs to strike supplemental interrogatories which were submitted by the defendant and to be answered by the plaintiffs. This motion was denied by the court and an order entered compelling the plaintiffs to answer the supplemental interrogatories forthwith. The discovery orders entered by the court were never complied with by either of the plaintiffs.”
This was erroneous. Plaintiffs had never complied with the discovery procedures, but compliance was not required because the trial court had never entered the orders denying plaintiffs’ motions to strike the supplemental interrogatories and to set aside orders for production of documents. Apparently acting under this misconception of fact, the trial court issued an opinion dismissing plaintiffs’ actions. The trial court committed error in dismissing plaintiffs’ claim for failure to comply with discovery procedures where the question of compliance was still an open one.
While Michigan GCR 1963, 313.2(2)(c) undoubtedly gives the trial court the authority to dismiss a claim where a party litigant refuses to comply with discovery orders, in the instant case the plaintiffs were not obligated to comply with discovery procedures because plaintiffs’ motion to strike supplemental interrogatories and plaintiffs’ motion
In view of the fact that the trial court’s decision stemmed from a gross misconception of the facts, the trial court’s decision must be reversed. If the facts had been as defendant’s counsel purported them to be on January 19, Í971, the trial court would have been correct in dismissing plaintiffs’ claims under GCR 1963, 313.2(2)(c).
Plaintiffs’ other two alleged errors may not be present in a remand and are not determined at this time.
The order of dismissal is reversed and the matter is remanded. Costs to plaintiffs.