Young v. Everlock Taylor Corp.

137 Mich. App. 799 (1984) 359 N.W.2d 213 YOUNG v. EVERLOCK TAYLOR CORPORATION Docket No. 73856. Michigan Court of Appeals. Decided October 1, 1984. Kozlow, Woll, Crowley, Berman & Olsman (by Jules B. Olsman), for plaintiff. Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by John P. Jacobs), for defendant on appeal. *801 Before: M.J. KELLY, P.J., and BRONSON and C.W. SIMON,[*] JJ. M.J. KELLY, P.J. Defendant appeals as of right from a trial court order denying its motion to allow the late filing of a mediation rejection. Defendant appeals as well from the entry of a judgment entered in favor of plaintiff in the amount of $150,000, pursuant to WCCR 403.15(a). We affirm. Plaintiff commenced this personal injury action against defendant in 1981. A subsequently entered default was set aside by stipulation of the parties on January 21, 1982. On May 24, 1983, a mediation hearing was held before the Wayne County Tribunal Service, which evaluated plaintiff's claim at $150,000. Since neither party rejected the mediation award as required under WCCR 403.15(a), the mediation clerk sent notice to both parties informing them that the award had been accepted. Plaintiff filed a motion for entry of judgment and defendant responded with this motion to allow late filing of its rejection or, in the alternative, to set aside the judgment entered. The trial court denied both motions, stating: "I think I've heard it all, counsel. After all, there are others waiting behind you. The court is aware of at least one case in which the appellate court excused counsel after a heart rendering plea that he was late because of lack of knowledge of the rule, and you, Mr. Zierk, offer a similar excuse having to do with difficulties among your clerical office help. "However, a quick review of the file, and from what you've told us here, indicates not only did you not reject the mediation award as provided for by the rules, but that you couldn't attend the mediation hearing because of other apparently more important affairs and sent somebody else to do that. It also appears that this case, *802 in January of '82, had gone into default and you prevailed upon opposing counsel to stipulate to set aside your default. I don't know how many more important matters you have, but it appears that this one has been placed on the back burner from its inception. "I am afraid I'm going to have to turn a deaf ear on your plea. Perhaps you can sell it down the street. If you can, good luck to you. Your motion is denied." WCCR 403.7(e) provides that upon receipt of the board's mediation evaluation, the parties involved have 40 days within which to accept or reject it in writing. Where neither party rejects the award in writing, the award will be deemed to have been accepted and a judgment will be entered in the mediated amount. WCCR 403.15(a). It is within the discretion of the trial court to set aside an acceptance of a mediation award prior to entry of a judgment upon the award. MGM Brakes Division of Indian Head, Inc v Uni-Bond, Inc, 417 Mich 905; 330 NW2d 853 (1983). Both before and after a judgment has been entered pursuant to the acceptance of a mediation award, relief is available as with any other judgment under GCR 1963, 528.3 and a trial court's decision to grant or deny relief will be reviewed only for an abuse of discretion. Coolman v D B Snider, Inc, 129 Mich App 233; 341 NW2d 484 (1983); Cooper v Automotive Finishes, Inc, 109 Mich App 530, 534; 311 NW2d 414 (1981). In this case, the trial court recognized that defense counsel's failure to reject the mediation award in writing was inadvertent and attributable to a change of personnel in his clerical staff. The court further looked to the overall record and considered that a default had at one time been entered against the defendant and that defense counsel had failed to attend the mediation hearing, sending in his stead another attorney from his *803 firm who was unfamiliar with the file. While it is true that defense counsel had not yet been retained at the time the default was entered, that does not justify cavalier handling — quite the contrary. Further, defense counsel's absence from the mediation hearing, though arguably necessary, cannot be ascribed to circumstances beyond his control. Juggling of conflicting hearing dates and times is the trial lawyer's lot; conflicts are routine, foreseeable and, indeed, inevitable. The diligent attorney must marshall his resources and resolve such conflicts before detrimental consequences descend, not after. We cannot conclude that the trial court's refusal to grant defendant's motion was based on "unwarranted perceptions of defense counsel's behavior" and we thus find no abuse of discretion. Defendant has failed to establish any extraordinary circumstances explaining or excusing its failure to reject the mediation award, and we find none. Lark v Detroit Edison Co, 99 Mich App 280; 297 NW2d 653 (1980), lv den 410 Mich 906 (1981). Affirmed. C.W. SIMON, J., concurred. BRONSON, J. (dissenting). I respectfully dissent. While I sympathize with the trial court's impatience, I believe the court abused its discretion in refusing to set aside acceptance of the mediation evaluation. The trial court's decision was based on its feeling that defense counsel "had more important matters pending" and had placed this case on the "back burner from its inception". Defense counsel explained to the trial court that the default was not the result of any inadvertence or mistake on his part and that, as soon as the *804 case was made known to him, a stipulation was promptly suggested, executed, and the case proceeded in a timely manner. Defense counsel further explained that his inability to attend the mediation hearing was necessitated by a settlement conference in Macomb County which was unexpectedly extended approximately an hour and a half while the circuit court judge left to attend a meeting of the board of commissioners. Rather than addressing defense counsel's excuse for his failure to make a timely rejection of the mediation award, the trial court denied defendant's motion based on unwarranted perceptions of defense counsel's behavior. Under these circumstances, I would reverse and remand to the trial court with instructions that it set aside the acceptance of the mediation evaluation. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.