ACKRON CONTRACTING CO. v. Oakland County

87 Mich. App. 294 (1978) 274 N.W.2d 44 ACKRON CONTRACTING COMPANY, INC. v. OAKLAND COUNTY Docket No. 77-4155. Michigan Court of Appeals. Decided November 28, 1978. Dickinson, Wright, McKean, Cudlip & Moon (by John K. Renke, II), for defendant-appellee Oakland County. Keywell & Rosenfeld (by Sidney L. Frank), for defendant-appellant Argonaut Insurance Company. *296 Before: BEASLEY, P.J., and R.B. BURNS and J.H. VANDER WAL,[*] JJ. R.B. BURNS, J. Counter-defendant appeals from the entry of a default judgment in favor of defendant. Default judgment was entered due to counter-defendant's noncompliance with court-ordered discovery. GCR 1963, 313.2(2)(c). Our examination of the record convinces us that the trial court did not abuse its discretion in entering default judgment. Two notices to produce documents and tangible things were filed by defendant. Counter-defendant ignored these notices. The trial was adjourned four times, pursuant to the parties' stipulation, so that discovery could be completed. Never were the requested documents produced. Never did counter-defendant dispute the reasonableness of the court's order of discovery. Counter-defendant did not heed defendant's repeated warnings about the consequences of non-production of the documents. Not until the day default judgment was finally entered was there an attempt to explain the delay. The case had already been pending for 19 months. There was no abuse of discretion in the entry of the default judgment. First Bank of Cadillac v Benson, 81 Mich App 550; 265 NW2d 413 (1978), Humphrey v Adams, 69 Mich App 577; 245 NW2d 167 (1976). Affirmed. J.H. VANDER WAL, J., concurred. BEASLEY, P.J. (dissenting). I respectfully dissent. I would set aside the default judgment conditioned *297 upon payment of substantial costs.[1] Discovery is, after all, a mere preliminary process of recent origin designed to promote more just results in litigation. While I do not condone appellant's defaults in granting discovery, such fact should not become a penalty by which a harsh result is obtained. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] It is represented appellant has complied with the discovery order; this dissent assumes satisfying the trial court of such compliance.