Opinion
363318
01-26-2023
Francisco Alexander Lopez v. JeromeJoseph Balsis
LC No. 20-016872-NI
Kirsten Frank Kelly Presiding Judge Thomas C. Cameron Anica Letica Judges
ORDER
The motion for immediate consideration is GRANTED.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application, the trial court's August 1, 2022 order granting a motion for default is REVERSED, and the matter REMANDED for further proceedings consistent with this order. Plaintiff/counter-defendant Lopez attended a deposition on July 20, 2021. The parties agreed to continue the deposition at a later date so that a translator could be in attendance. The continued deposition was noticed for August 25, 2021. However, Lopez was detained by Immigration and Customs Enforcement and could not attend the August 25, 2021 deposition. The parties stayed proceedings indefinitely pending resolution of the immigration proceedings. After the immigration proceedings were completed, defendant/counter-plaintiff Balsis never renoticed Lopez's deposition, and never moved to compel Lopez to attend a deposition. Rather, Balsis moved for a default due to Lopez's failure to appear for a deposition, and the trial court granted that motion. Given that it was impossible for Lopez to attend the August 25, 2021 deposition, and that Balsis never renoticed the deposition or sought (much less obtained) a court order compelling Lopez's attendance for a deposition, it was an abuse of discretion to grant a default against Lopez. See Bass v Combs, 238 Mich.App. 16, 26; 604 N.W.2d 727 (1999), overruled in part on other grounds Dimmitt &Owens Fin Inc v Deloitte &Touche (ISC), LLC, 481 Mich. 618 (2008) ("Severe sanctions are generally appropriate only when a party flagrantly and wantonly refuses to facilitate discovery, not when the failure to comply with a discovery request is accidental or involuntary").
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.