Opinion
Docket No. 171789.
Submitted June 10, 1995, at Detroit.
Decided September 26, 1995, at 9:05 A.M. Leave to appeal sought.
DeNardis, McCandless Muller, P.C. (by Mark F. Miller and William McCandless), for the plaintiff.
Kaufman Payton (by Donald L. Payton), for the defendant.
Defendant appeals as of right a default judgment entered by the circuit court awarding plaintiff $2,410,454 following defendant's failure to comply with court orders compelling discovery. Plaintiff cross appeals from an order of the circuit court denying its request for a declaratory judgment. We affirm in part, vacate in part, and remand.
I
The trial court did not abuse its discretion when it entered a default judgment against defendant as a sanction for defendant's intentional violation of the court's discovery orders. The sanction of a default judgment is appropriate where, as here, there has been an intentional refusal to facilitate discovery. MCR 2.313(B)(2)(c); Frankenmuth Mutual Ins Co v ACO, Inc, 193 Mich. App. 389, 397; 484 N.W.2d 718 (1992); Equico Lessors, Inc v Original Buscemi's, Inc, 140 Mich. App. 532, 535; 364 N.W.2d 373 (1985).
II
Next, the trial court's order compelling the production of documents and witnesses was not automatically stayed pending an interlocutory appeal by defendant. MCR 7.209(A)(1) provides that "[a]n appeal does not stay the effect or enforceability of a judgment or order of a trial court unless the trial court or the Court of Appeals otherwise orders." No stay of proceedings was ever ordered by the trial court or this Court in this matter. Therefore, defendant was not excused from complying with the trial court's orders compelling discovery.
III
Defendant further argues that it was entitled to a jury trial regarding the issue of damages on the basis of the jury demand filed by plaintiff. Although defendant did not file a jury demand or a reliance on plaintiff's demand, it cites Mink v Masters, 204 Mich. App. 242, 247; 514 N.W.2d 235 (1994), for the proposition that "where a plaintiff has filed a jury demand, the defendant need do nothing further to preserve its right to a trial by jury."
For the reasons stated in Chief Judge DOCTOROFF'S concurring opinion, Mink, supra at 248-250, we disagree with the majority opinion in Mink. We follow Mink only because we are required to do so pursuant to Administrative Order No. 1994-4. Were we not compelled to follow Mink, we would affirm and hold that defendant had waived its right to a jury trial by failing to file either a jury demand or a reliance. MCR 2.508(D).
Reluctantly, we follow Mink and rule that the trial court erred in conducting a hearing rather than a jury trial regarding the issue of damages. The appropriate remedy is to vacate the trial court's judgment and remand for a jury trial regarding the issue of damages. Mink, supra at 247.
IV
On cross appeal, plaintiff argues that the trial court erred in refusing to enter a declaratory judgment regarding any other future claims that may fall under the parties' insurance agreement. We disagree. A trial court has the power to enter a declaratory judgment only in a case of actual controversy. MCR 2.605. A case of actual controversy does not exist, however, where, as here, the injury sought to be prevented is merely hypothetical. Shavers v Attorney General, 402 Mich. 554, 588; 267 N.W.2d 72 (1978), cert den 442 U.S. 934 (1979); Recall Blanchard Committee v Secretary of State, 146 Mich. App. 117, 121; 380 N.W.2d 71 (1985). The trial court did not err in denying plaintiff's request for a declaratory judgment.
Our disposition of this appeal renders it unnecessary to address defendant's remaining issues on appeal.
Affirmed in part and vacated in part. We remand this matter to the trial court to conduct a jury trial regarding the issue of damages. We do not retain jurisdiction.