EQUICO LESSORS, INC.
v.
ORIGINAL BUSCEMI'S, INC.
Docket No. 74869.
Michigan Court of Appeals.
Decided February 5, 1985.Miller, Canfield, Paddock & Stone (by Marjory G. Basile), for plaintiff.
Joseph E. Mihelich, for defendant.
Before: CYNAR, P.J., and BEASLEY and R.E. ROBINSON,[*] JJ.
*534 PER CURIAM.
Plaintiff's motion for a default judgment against defendant-appellant was granted by the trial court pursuant to GCR 1963, 313.4 because officers of the defendant, Original Buscemi's, Inc., failed to appear at a deposition. Defendant appeals to this Court as of right. We reverse and remand for a bench trial.
This case involves a breach of an equipment lease contract made between plaintiff and Dima Corporation. Plaintiff filed suit on November 18, 1981, alleging that Buscemi was a co-leasee. Buscemi denied this in its answer and demanded a jury trial; however, the jury trial fee was never paid.
On March 16, 1983, nearly six months after discovery had formally ended, as indicated in a pretrial order, plaintiff noticed depositions for three of Buscemi's officers, Paul Buscemi, Richard Buscemi and Ronald Keolian, for March 29, 1983. This was the only discovery attempted. The attorneys agreed to postpone the deposition to March 31, 1983. When Buscemi's officers could not attend, plaintiff's counsel consented to the adjournment and the deposition was rescheduled for May 4, 1984. The defendants failed to appear for the deposition and plaintiff then filed a motion for default judgment. The motion was granted.
GCR 1963, 313.4 provides for default judgment as one possible sanction for failure to appear for a deposition. Default is a drastic measure and should only be used with caution. MacArthur Patton Christian Ass'n v Farm Bureau Ins Group, 403 Mich 474, 477; 270 NW2d 101 (1978). When the sanction of a default judgment is contemplated, the trial court should consider whether the failure to respond to discovery requests extends over a substantial period of time, whether there was a court order directing discovery which has not been *535 complied with, the amount of time that has elapsed between the failure to appear and the motion for a default judgment, and whether willfulness has been shown. MacArthur Patton, supra, p 477. The sanction of a default judgment should only be employed when there has been a flagrant and wanton refusal to make discovery. Philips Industries, Inc v Smith, 90 Mich App 237, 246; 282 NW2d 788 (1979). To be willful the failure must be conscious or intentional, not accidental or involuntary. Jack's Factory Outlet v Pontiac State Bank, 95 Mich App 174, 179; 290 NW2d 114 (1980). The trial court's decision to grant a default judgment is reviewed for an abuse of discretion. Jack's Factory Outlet, supra.
Our review of the cases where the default judgment sanction was used discloses that a default judgment is generally only granted where the conduct has been inexcusable. In the case before us, there was no violation of a court order, no evidence that Buscemi's was intentionally interposing delays, and no showing of willfulness as defined by Jack's Factory Outlet, supra. Under the circumstances of this case it was an abuse of discretion to use the default judgment sanction; imposition of costs would have been more appropriate.
We appreciate the trial court's impatience with prior defense counsel. The trial court's frustration was compounded by defense counsel's failure to pay the jury fee as ordered at the pretrial conference and counsel's failure to make a written reply to plaintiff's motion for a default judgment; nonetheless, the default judgment ordered is too harsh a sanction under the facts of this case.
Defendant Buscemi's also suggests that even if the default judgment was properly granted as to liability, it is still entitled to a jury trial on the *536 issue of damages. We disagree. A defaulting party that properly preserved its right to a jury trial retains that right to a jury trial on the issue of damages even though it may no longer contest the issue of liability. Wood v DAIIE, 413 Mich 573, 583-584; 321 NW2d 653 (1982). Similarly, a defaulting party who has not requested a jury trial still has a right to a hearing on damages even though it may not contest liability. American Central Corp v Stevens Van Lines, Inc, 103 Mich App 507; 303 NW2d 234 (1981); Midwest Mental Health Clinic, PC v Blue Cross & Blue Shield of Michigan, 119 Mich App 671; 326 NW2d 599 (1982), lv den 417 Mich 1076 (1983); GCR 1963, 520.2(2). With these two propositions in mind, we conclude that a defaulting party who has failed to preserve its right to a jury trial does not have a right to a jury trial on the issue of damages. Defendant would have the right to contest the issue of damages in a bench trial if the default judgment were to stand; however, because the right to a jury trial was not properly secured, defendant would not have a right to a jury trial on the damage issue.
The default judgment is reversed and the case is remanded to the trial court for a bench trial on the merits. Appropriate costs incurred in the taking of the deposition in question here may be assessed if the trial court deems it necessary.
NOTES
[*] Retired circuit judge, sitting on the Court of Appeals by assignment.