Opinion
Docket No. 108945.
Decided May 15, 1989. Leave to appeal applied for.
Carl G. Becker Associates, P.C. (by Imants M. Minka), for plaintiff.
Lawrence R. Imerman, for defendant.
Before: MICHAEL J. KELLY, P.J., and GILLIS and CYNAR, JJ.
Plaintiff appeals as of right from the circuit court's order dismissing her lawsuit with prejudice when plaintiff's attorney failed to negotiate a settlement with defendant's attorney and failed to appear. We reverse and remand for trial before a different judge.
The instant matter was scheduled for a one-day bench trial on Monday, May 2, 1988. Defendant notes that eight pretrial conferences and nine trials were also scheduled. The pretrial conferences were held until midmorning. Defendant also claims that three cases were settled before trial. Trial was held in the fourth scheduled matter until noon according to defendant, but until 2:30 P.M. according to plaintiff. In the interim, another case was settled.
Thereafter, jury selection was held in a criminal case. At some point during the afternoon, the circuit court instructed the parties in the instant case to discuss the possibility of settlement. While defendant's attorney attempted to do so, plaintiff and her attorney remained in the courtroom and, thereby, refused to participate in negotiations.
At 4:42 P.M., the circuit court informed the jury that the criminal trial would last two or three days. The circuit court also noted that the jury would have to report at 10:00 A.M. on May 3 because the court had other matters it was regularly scheduled to hear on Tuesday mornings.
After the jury left the courtroom, the court continued the instant case and the one scheduled before it until May 3. Plaintiff's attorney asked permission to address the court. The court refused, noting that it was in recess. Plaintiff's attorney then stated that he would like to put something on the record. The court again stated that it was in recess. Plaintiff's attorney agreed, but indicated that he was entitled to put something on the record. The court again stated: "We're in recess."
Plaintiff's attorney asserts that at 8:45 A.M. on May 3 he returned to the circuit court and learned that other matters were scheduled for the morning. At that time, plaintiff's attorney went to 36th District Court, where he had fifteen eviction matters scheduled for May 3. Plaintiff's attorney had mentioned these prior commitments to defendant's attorney on May 2. Defense counsel claims that he arrived at 9:00 A.M. and his client arrived at 10:00 A.M.
At 11:30 A.M. on May 3, the circuit court called the instant case. On the record, defendant's attorney stated that he saw plaintiff's attorney at 9:15 A.M. and had not seen plaintiff. Defendant's attorney stated: "[Y]esterday, Mr. Minka suggested that he had fifteen minutes worth of matters in the 36th District Court." The court noted that plaintiff's attorney had not attempted to reach a settlement as it had requested and then the court held:
I did, in fact, ask that this matter be continued to this morning since it was a non-jury trial and I could take it at break.
Since Mr. Minka has failed to appear, this case is hereby dismissed.
Plaintiff's attorney claims that he arrived at circuit court at 12:05 P.M. and subsequently learned that the case was dismissed. Plaintiff's attorney denies that the circuit court informed him that it intended to try the instant case during breaks in the criminal case. Plaintiff's attorney notes that the criminal trial lasted through May 6.
A trial court may in its discretion dismiss a suit where plaintiff and counsel fail to appear at a duly scheduled trial. Williams v Kroger Food Co, 46 Mich. App. 514; 208 N.W.2d 549 (1973). The trial court's determination will not be disturbed on appeal unless there has been an abuse of that discretion. Id.
Plaintiff's attorney argues that on May 2 he wanted to inform the circuit court that prior negotiations proved fruitless and that he had other matters scheduled on May 3 in 36th District Court. Plaintiff's attorney also argues that he wanted to ascertain when the instant case would actually be tried given that the court had instructed the jury that the criminal case would last for two or three days. Finally, plaintiff's attorney claims that he wanted to object to the court's action in failing to inform the parties of the status of their case until the end of the day and having the parties ready to proceed without knowledge of whether and when their case would be called.
Under these facts, we believe that the circuit court abused its discretion when it dismissed the instant case. We begin by noting that settlements cannot be forced upon parties. Indeed, there are numerous opportunities for parties to negotiate and, in fact, in some cases penalties for failure to do so reasonably. MCR 2.403 and 2.405. Plaintiff's attorney in this case indicates that numerous attempts at settlement had proven fruitless and that he wanted to inform the judge that he believed that subsequent negotiations would prove as fruitless.
Moreover, we note that there is no record to support the circuit court's claim that it told the parties that it would try the instant case during breaks in the criminal trial in progress and plaintiff's attorney denies being so informed. In any event, trying a one-day case during breaks in a two- or three-day criminal trial requires, at least, the presence of the parties' attorneys throughout that time. The parties and witnesses will also be required to await the breaks taken during the criminal trial. While the circuit court's time is valuable, so is that of the citizens it serves. Likewise, the court must realize that legal practitioners have many commitments. Where the instant case was scheduled for a one-day bench trial, the court acted unreasonably when it refused plaintiff's attorney the opportunity to address the court regarding the adjournment.
Reversed and remanded for further proceedings before a different judge.