MASSEY
v.
CITY OF FERNDALE
Docket No. 137034.
Michigan Court of Appeals.
Submitted February 2, 1993, at Detroit. Decided September 19, 1994, at 9:00 A.M.Ernest L. Jarrett, P.C. (by Ernest L. Jarrett), for the plaintiffs.
Cummings, McClorey, Davis & Acho, P.C. (by Marcia L. Howe), for the defendants.
Before: WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.
MICHAEL J. KELLY, J.
Plaintiffs appeal as of right a circuit court order granting defendants' motion to dismiss for failure to obey a discovery order. We affirm in part and reverse in part.
This action arises out of an incident that occurred on January 14, 1988, at Comerica Bank in Ferndale, Michigan. Plaintiffs claim that they were detained wrongfully by off-duty Ferndale police officer Paul Gheldorf after cashing their paychecks. Although certain items were confiscated, including plaintiff Massey's knife, they were allowed to leave and at that time were not charged with any crime.
On June 22, 1988, plaintiffs commenced an action against defendants alleging false arrest or imprisonment, intentional infliction of emotional distress, slander, false light invasion of privacy, and violations of constitutional rights.[1] Plaintiffs claimed the search was racially motivated. Notice *701 of the lawsuit was served on Officer Gheldorf at the end of September or beginning of October 1988. On October 12, 1988, Gheldorf prepared a police report regarding the January incident at the bank. A warrant was issued against plaintiff Massey, who ultimately was charged with carrying a concealed weapon. No charges were filed against plaintiff Johnson.
Both plaintiffs subsequently asserted the Fifth Amendment privilege against self-incrimination and thereby refused to participate in any discovery in the civil action.[2] On May 5, 1989, the criminal charges against plaintiff Massey were dismissed on the basis that the prosecution was untimely. The prosecution appealed the dismissal to this Court.
On July 24, 1989, an order staying the proceedings in the civil action for six months was entered by the trial court at plaintiffs' request. Two stipulated orders continuing the stay for one year (or six months each) were entered on January 30, 1990, and August 1, 1990. At a pretrial conference on August 21, 1990, the court indicated that it would not allow any further stays. The court entered a calendar conference order setting discovery cutoff and mediation for December 1990 and trial for February 4, 1991. This Court, MURPHY, P.J., and MacKENZIE and GRIFFIN, JJ., denied plaintiffs' application for leave to appeal the conference order in an order entered on October 15, 1990 (Docket No. 132332).
*702 Plaintiffs subsequently refused to participate in discovery because the prosecution's appeal in the criminal case was pending. An order compelling answers to defendants' interrogatories was entered on September 26, 1990. Following a hearing regarding defendants' motion to dismiss with prejudice on October 17, 1990,[3] the trial court entered an order dismissing the case without prejudice and assessing costs payable only in the event that the plaintiffs refiled their complaint.
This Court then affirmed the dismissal of the criminal charge against plaintiff Massey. People v Massey, unpublished opinion per curiam, decided December 20, 1990 (Docket No. 118486). The Supreme Court denied the prosecution's application for leave to appeal on April 16, 1991. 437 Mich. 974 (1991).
A trial court is authorized to impose sanctions as it deems just where a party fails to obey an order to provide or permit discovery. MCR 2.313(B). However, the court may not impose substantial penalties because a witness elects to exercise his Fifth Amendment privilege against self-incrimination. Lefkowitz v Cunningham, 431 U.S. 801, 805; 97 S. Ct. 2132; 53 L. Ed. 2d 1 (1977). The court's decision will not be overturned on appeal absent an abuse of discretion. Barlow v John Crane-Houdaille, Inc, 191 Mich. App. 244, 251; 477 NW2d 133 (1991).
Here, the trial court's decision to dismiss without prejudice did not constitute an abuse of discretion. The court protected plaintiffs' Fifth Amendment rights by issuing stays during the pendency of the criminal proceedings. Only after the criminal *703 proceedings were concluded at the trial level did the court call a halt to further delays and refuse to permit stays in the civil case while the criminal proceedings were appealed, whether as of right or by application for leave by the prosecutor. Because plaintiffs obviously refused to obey a proper discovery order, the court was entitled to impose sanctions pursuant to MCR 2.313(B). The sanction of dismissal without prejudice was reasonable because it left neither party disadvantaged. See McKelvie v Mount Clemens, 193 Mich. App. 81, 86; 483 NW2d 442 (1992); Bruce v Grace Hosp, 96 Mich. App. 627, 631-632; 293 NW2d 654 (1980).
Plaintiffs' argument that possible operation of the statute of limitation might prejudice their ability to refile their complaint if criminal proceedings became lengthy is moot because this Court affirmed the dismissal of the criminal charge on December 20, 1990, and the Supreme Court denied leave to appeal four months later.
Our conclusion that the trial court did not abuse its discretion rests on the fact that dismissal was without prejudice. Another part of the dismissal order, however, assessed costs against plaintiffs in the event they refiled their complaint. This part of the order essentially operated as a tax upon the exercise of plaintiffs' Fifth Amendment rights and, even after their statute-of-limitations and self-incrimination concerns became moot, as a deterrent against refiling the complaint. Effectively, the assessment of costs made the dismissal order with prejudice. We therefore reverse the part of the order assessing costs against plaintiffs.
Affirmed in part and reversed in part.
CONNOR, J., concurred.
WAHLS, P.J. (concurring in part and dissenting *704 in part).
I agree with the majority that the part of the order that imposed costs upon plaintiffs should be reversed. However, I would additionally find that the trial court abused its discretion in arbitrarily ordering the case to proceed, regardless of the parties' stipulation to stay the proceedings, simply because it was the oldest case on the court's docket. Obviously, defendants were not concerned about proceeding with discovery, as evidenced by their stipulation to the August 1990 order to stay the proceedings an additional six months. I find no justification for the court's sudden reversal of its past willingness to allow a stay, and subsequent dismissal of plaintiffs' lawsuit, even though the dismissal was without prejudice. Accordingly, I decline to join the majority's "no harm, no foul" analysis.
NOTES
[1] Plaintiffs also named Comerica Bank and Lawrence Wolf Properties as defendants. A stipulation to dismiss those parties was entered after oral argument on March 1, 1993.
[2] The right against self-incrimination is guaranteed by both the United States and Michigan Constitutions, US Const, Am V; Const 1963, art 1, § 17, and protects an accused from being compelled to testify against himself or provide evidence of a testimonial or communicative nature. People v Burhans, 166 Mich. App. 758, 761-762; 421 NW2d 285 (1988). The constitutional privilege against self-incrimination applies to evidence in a civil proceeding that might subject the witness to criminal prosecution. Malloy v Hogan, 378 U.S. 1, 11; 84 S. Ct. 1489; 12 L. Ed. 2d 653 (1964); Paramount Pictures Corp v Miskinis, 418 Mich. 708; 344 NW2d 788 (1984).
[3] Before filing this motion, plaintiffs filed a motion for voluntary dismissal without prejudice on October 5, 1990, and set the hearing for October 24, 1990. This motion was not addressed at the hearing on October 17, 1990.