Opinion
Docket No. 43815.
Decided April 22, 1980. Leave to appeal denied, 409 Mich. 937.
Murdoch J. Hertzog, for plaintiff.
Bell Hudson, P.C., for defendant on appeal.
Before: BRONSON, P.J., and BEASLEY and D.C. RILEY, JJ.
On December 8, 1972, the plaintiff, Bruno M. Masters, filed suit against the City of Highland Park, the Civil Service Board of the City of Highland Park and Highland Park General Hospital, alleging that his discharge, after 22 years of service with the Highland Park Hospital maintenance department, was wrongful. He had been discharged for alleged noncompliance with the city's residence requirements. The discharge was first upheld by the Highland Park Civil Service Commission and then by the Wayne County Circuit Court in an order dated December 26, 1975. This Court reversed and ordered the plaintiff reinstated with accrued back wages. Masters v Highland Park, 79 Mich. App. 77; 261 N.W.2d 215 (1977), aff'd and remanded, 402 Mich. 907 (1978). The Michigan Supreme Court's order of affirmance remanded the matter to the trial court for a determination of the amount of back pay to be awarded to the plaintiff. This order gave the defendants an opportunity to establish that the plaintiff had not properly mitigated his damages.
On August 25, 1978, plaintiff was deposed by the defendants regarding his income and attempts to find employment following discharge. The defendants submitted a set of interrogatories to plaintiff on December 13, 1978, which were not answered. On December 28, 1978, the plaintiff moved for entry of judgment. The city objected to any entry of a judgment based on the plaintiff's failure to respond to the interrogatories and its own desire to depose the former personnel director of Highland Park. On February 2, 1979, the trial court rejected defendants' arguments and rendered judgment for plaintiff in the amount of $242,281.91. The city now appeals, claiming that the trial court reversibly erred by not allowing them to adequately explore the mitigation of damages issue.
Discovery was designed to clarify the factual and legal questions to be litigated at trial. Through this mechanism, complete and honest disclosure of the underlying issues can occur, preventing surprise at trial. Klabunde v Stanley, 16 Mich. App. 490, 493; 168 N.W.2d 450 (1969), rev'd on other grounds, 384 Mich. 276; 181 N.W.2d 918 (1970). To this end, the discovery rules are to be liberally construed. Daniels v Allen Industries, Inc, 391 Mich. 398, 403; 216 N.W.2d 762 (1974). However, these disclosure considerations must be balanced against the necessity for expeditious disposition of litigation. Klabunde v Stanley, 384 Mich. 276, 282; 181 N.W.2d 918 (1970). It is up to the trial judge to balance these ofttimes competing concerns so as to ensure both parties' right to a fair trial.
Defendants objected to the entry of judgment prior to answers being submitted on the December interrogatories. Despite the ready mechanism available under GCR 1963, 313.1, defendants failed to move for an order compelling a response to the interrogatories. See Omlie Industries, Inc v Industro Motive Corp, 77 Mich. App. 48, 50-51; 257 N.W.2d 677 (1977). We believe that their failure constituted a waiver and we will not review defendants' claim absent manifest injustice.
Determining the relevancy of interrogatories is a decision within a trial judge's discretion which will not be reversed on appeal absent an abuse of discretion. Marchand v Henry Ford Hospital, 398 Mich. 163, 169-170; 247 N.W.2d 280 (1976), Walker Metallurgical Corp v Ledoux Co, 16 Mich. App. 588, 590; 168 N.W.2d 474 (1969). We agree with the trial judge that most of defendants' interrogatories had either already been answered at plaintiff's deposition or were irrelevant to the mitigation issue. Since most of the questions were of this nature, the interrogatories were not submitted until late in the litigation, the defendant did not move to compel answers and the burden of mitigation was on defendants, no manifest injustice results if we do not review defendants' claim.
Defendants further argue that the trial court erred in not allowing them time to depose an out-of-state witness, the former personnel director of Highland Park.
The granting or denial of discovery is within the trial judge's discretion. See Daniels, supra, Wechsler v Mroczkowski, 351 Mich. 483, 491; 88 N.W.2d 394 (1958). An underlying consideration must be whether the granting or extension of discovery will facilitate rather than impede the litigation. See Webster v Central Paving Co, 51 Mich. App. 62; 214 N.W.2d 707; (1974). Factors such as the timeliness of the request, the duration of the litigation and possible prejudice to the litigants should be considered. See Klabunde, supra, Webster, supra, Haynes v Monroe Plumbing Heating Co, 48 Mich. App. 707; 211 N.W.2d 88 (1973). Unless it will create manifest injustice, after a reasonable length of time a judge should be able to terminate discovery and proceed with trial.
In the instant case, defendants had ten months between the Supreme Court's remand order and the entry of judgment. Yet, it was only when plaintiff moved for judgment that the defendants indicated any dire need for the witness's testimony. We believe that a reasonable time for discovery had elapsed so that it was proper for the trial judge to refuse to extend defendants' investigation.
In summary, we hold that the failure to utilize the discovery sanctions listed in GCR 1963, 313, will waive the issue of noncompliance on appeal, absent manifest injustice. Parties should only be allowed a reasonable time prior to trial in which to pursue discovery methods such as depositions or interrogatories or discovery sanctions such as orders and default judgments. After that period, the trial judge should be able to terminate discovery and to proceed to trial or the entry of judgment. His decision to do so will not be reversed by this Court unless manifest injustice has resulted to the appealing party.
Affirmed.