Opinion
Docket No. 52278.
Decided July 7, 1981.
Lopatin, Miller, Freedman, Bluestone, Erlich Rosen (by Steven G. Silverman), for plaintiff.
Vandeveer, Garzia, Tonkin, Kerr Heaphy, P.C. (by Dennis B. Cotter), for defendant.
Before: D.C. RILEY, P.J., and BASHARA and MacKENZIE, JJ.
Joyce Belfiori, former plaintiff-administratrix of the estate of Charles Belfiori, filed a wrongful death products liability action in Macomb County Circuit Court on November 26, 1979. On April 7, 1980, the circuit judge denied defendant's motion for summary judgment but, at defendant's request, ordered plaintiff to post a $1,500 security bond. By order dated May 5, 1980, plaintiff was given two weeks to post the bond. Following plaintiff's failure to post bond in accordance with the order, the judge dismissed plaintiff's case with prejudice on June 3, 1980. Plaintiff appealed as of right. Entitlement of this appeal was amended by order of this Court to reflect that Samuel J. Belfiori, Jr., is the present administrator of this estate.
Plaintiff's decedent, Charles Belfiori, was an employee of the Ford Motor Company. On or about June 11, 1979, a "Hi Lo" forklift truck, manufactured by defendant and purchased by Ford, fell off a loading dock and into a well at Belfiori's work place. Belfiori supervised a group of employees who were attempting to lift the forklift out of the well. A cable from an overhead crane was attached to an eyelet at the top of the forklift's mast. As the forklift was raised off the ground, its weight shifted, and Belfiori was fatally crushed.
Plaintiff's complaint alleged negligence and breach of warranty against defendant, Allis-Chalmers, Inc. In its motion for summary judgment defendant claimed that "[a]s a matter of law, there is no duty on the part of the manufacturer of a product to provide devices and/or instruction regarding recovery of that product after a wreck". On April 7, 1980, following the hearing on its motion, defendant orally requested the trial court to set a bond to secure costs:
"[Defense Counsel]: Your Honor, will you set a bond to secure costs?
"The Court: Yes, I will. What are you asking for to take the proceedings from here on out?
"[Defense Counsel]: Fifteen hundred dollars, Your Honor.
"The Court: Fifteen hundred dollars bond, counsel.
"[Defense Counsel]: Thank you, Your Honor."
This ruling came immediately after the judge denied defendant's motion for summary judgment. Although the judge believed that plaintiff's theory of liability was tenuous, in his discretion, he decided to allow plaintiff to pursue further discovery. Plaintiff voiced no objection to defendant's request for a bond nor to the amount at which it was set. Plaintiff did not post the bond or file an affidavit showing that plaintiff was unable to do so, and the case was dismissed. On appeal, plaintiff challenges the propriety of the lower court's actions.
Plaintiff's chief contention on appeal is that the court erred in failing to assess plaintiff's financial ability to post bond and in failing to inquire of defendant about the necessity of the amount requested. GCR 1963, 109, provides in pertinent part:
"In any civil actions, upon motion made by any defendant, any plaintiffs, when it appears reasonable and proper to the court, may be required to file with the clerk of court a bond to the defendant with sureties to be approved by the court in an amount sufficient to cover all costs which may be awarded by the trial court, or, if the plaintiff appeals, by both the trial and appellate courts, such amount to be determined by the court in its discretion. Notwithstanding the above:
"(1) any plaintiff who shows by affidavit that he is financially unable to furnish a security bond and whose complaint states a meritorious claim may be allowed to proceed without furnishing security for costs * * *." (Emphasis added.)
Gaffier v St John's Hospital, 68 Mich. App. 474; 243 N.W.2d 20 (1976), is one of the few reported appellate cases interpreting GCR 109. In Gaffier, plaintiff was an elderly woman whose sole income came from a monthly social security check of $197. She brought a $6,000,000 malpractice suit against the defendant hospital and five doctors. At the request of the defendant hospital, the trial court ordered plaintiff to file a $2,500 surety bond with the court clerk. Plaintiff appealed by leave granted, and this Court reversed the trial court's order requiring the bond.
In Gaffier, after noting that the security provided to the defendant hospital was more than plaintiff's yearly social security income, the Court held that the trial judge abused his discretion in ordering plaintiff to post the security bond:
"Defendant's motion gave no explanation of the necessity of that sum, nor indicated any particular hardship that would result were the bond to be denied. We cannot bar this plaintiff from the courts because of her poverty." Id., 479.
The Gaffier Court also stated that a security bond should be ordered only upon the "movant's showing substantial reason". Id., 478. At several points throughout the opinion, the Court noted that the decision whether or not to grant a bond and the amount of the bond rests within the sound discretion of the trial court. Id., 477-479. That trial courts are vested with a large degree of discretion in the matter of setting security bonds is well established. In the case of In re Ford's Estate, 339 Mich. 339, 346; 63 N.W.2d 417 (1954), our Supreme Court, quoting from Goodenough v Burton, 146 Mich. 50; 109 N.W. 52 (1906), and Balahoski v Kent Circuit Judge, 243 Mich. 70; 219 N.W. 597 (1928), held that:
"`This Court will not review the discretion of the circuit judge who makes or denies an order for security for costs.'"
While the legal principles stated in Gaffier are instructive, the present case is distinguishable as the present plaintiff has made absolutely no showing of indigency. Plaintiff failed not only to interpose an objection at the time the bond was originally set but also has failed to file an affidavit demonstrating a financial inability to post the bond.
On appeal, our sole function is to determine whether the trial court abused its discretion in setting the bond. In re Ford's Estate, supra, 346. Our review of the record convinces us that the judge did not. Prior to ordering the bond, the judge had listened to the attorneys argue a summary judgment motion. Based on the arguments presented, as well as the file that existed at the time, he probably could have granted defendant's motion. He denied it, however, choosing to give plaintiff more time to develop plaintiff's case. We are of the opinion that the very fact that plaintiff's theory of liability was so tenuous provided the "substantial reason" for granting the motion for a security bond. See Flanagan v General Motors Corp, 95 Mich. App. 677; 291 N.W.2d 166 (1980).
We are also of the opinion that the judge did not abuse his discretion in setting the bond at $1,500. Clearly, a trial judge will set the bond in light of his own experience. This fact was recognized and approved by the Supreme Court in In re Ford's Estate, supra, 346-347, where it stated:
"The unanswered allegations of defendants' motion and supporting affidavit regarding plaintiff's claim, the files of this case containing that claim, and the files in other cases in that court (of which it might properly take judicial notice — Wilkinson v Conaty, 65 Mich. 614 [32 N.W. 841 (1887)], People v Fleisher, 322 Mich. 474 [ 34 N.W.2d 15 (1948)], disclosing the extent to which costs may reasonably be expected to mount in proceedings such as this, afforded ample basis for the probate court's exercise of its discretion and its finding that it appeared to be reasonable and proper, as provided in section 5 of the statute, to require security for costs in the amount ordered." (Emphasis added.)
We conclude, therefore, that there was substantial reason for setting the bond in the instant case and that the amount of the bond was not unreasonable. In order to facilitate meaningful appellate review, however, we urge trial judges in the future to articulate the basis for their decision to set bond and, if possible, the basis for the amount set.
Finally, we conclude that the trial court did not abuse its discretion by imposing the sanction of dismissal for plaintiff's failure to comply with its order requiring security to be posted. Our Supreme Court continually has held that a trial court properly may dismiss an action where the plaintiff fails to comply with such an order. Goodenough, supra, 52, Balahoski, supra, 72, Lott v Hirsch, 342 Mich. 376, 377; 70 N.W.2d 818 (1955).
Affirmed.