Opinion
No. 123105.
June 4, 2003.
COA: 230974, Genesee CC: 98-062970-NO
On order of the Court, the application for leave to appeal the November 22, 2002 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and the October 24, 2000 judgment of the Genesee Circuit Court and REMAND this case to the circuit court for further proceedings consistent with this order. Defense counsel's failure to appear on the date scheduled for trial was excusable because another trial was scheduled to and did begin on the same date. Counsel's attempt to resolve the conflict with each court was unsuccessful, and the judges did not resolve the conflict as requested by counsel, as they were obligated to do under MCR 2.501(D)(2). Moreover, the date for trial in the other case was set first and so had priority. MCR 2.501(D)(3). Finally, defendant properly preserved his right to a jury determination on the amount of damages, and the failure to appear on the date scheduled for trial alone did not waive that right. Zaiter v. Riverfront Complex, Ltd, 463 Mich. 544, 555-556 (2001).
We do not retain jurisdiction.
Weaver and Kelly, JJ., would grant leave to appeal.