Grubor Enterprises, Inc v. Kortidis

Marilyn Kelly, J.

Plaintiff appeals as of right from an order of the Wayne Circuit Court dismissing with prejudice its action for breach of contract and fraud. On appeal, plaintiff argues that, notwithstanding its failure to file a witness list, it should have been allowed to testify on its own behalf and to call defendant as an adverse witness. It asserts, also, that the trial court erred in dismissing the action based solely on the fact that another circuit court judge refused to admit its witness list. We affirm.

*627The instant action was filed in August, 1988. The case was reassigned to different judges on several occasions. Judge James Chylinski held a settlement conference on September 24, 1990. The settlement conference worksheet contained notations in the judge’s handwriting indicating the absence of a witness list. Plaintiff filed its first witness list on November 6, 1990. Plaintiff did not move to admit it until December 19, 1990.

Judge Chylinski denied plaintiff’s motion to admit the witness list on Friday, January 4, 1991. His decision was based in part on the long delay in filing it and the fact that trial was scheduled for the following Monday. His only comment regarding the parties’ ability to testify at trial absent a witness list was his question to plaintiff’s counsel: "How could you call anyone except the defendant?”

Defendant subsequently filed a motion to dismiss with prejudice, arguing that plaintiff was unable to call any witnesses as a result of Judge Chylinski’s order. At the January 7, 1991 hearing before Judge Thomas Foley, plaintiff argued that Judge Chylinski’s order did not bar calling the parties. Judge Foley disagreed. He dismissed the case with prejudice; the case had been pending since August, 1988, and any problems plaintiff had resulted from its own doing.

Plaintiff moved to set aside the order of dismissal and to reinstate the claim. Plaintiff’s original counsel appeared and described an in-chambers meeting he had had with Judge Chylinski and defense counsel after Judge Foley’s dismissal. Allegedly, Judge Chylinski never intended to deny plaintiff a trial. Defense counsel admitted that, absent a witness list, Judge Chylinski probably would have allowed the parties to be called as witnesses. Judge Foley denied plaintiff’s motion. *628He recognized that plaintiff was a corporation. He reasoned that to permit this plaintiff to testify through its agents would allow any corporate plaintiff to "call a thousand witnesses” without ever filing a witness list.

i

Plaintiff argues that, even if it could not file a witness list, it should be allowed to call the parties as witnesses. By local court rule, an unlisted witness may not be called at trial, except as the court orders for good cause shown. Wayne Circuit LCR 2.301. In this case, the parties were named on plaintiffs witness list. However, they are considered "unlisted witnesses,” because Judge Chylinski denied plaintiffs request to file its list belatedly.

Witness lists are an element of discovery. Stepp v Dep’t of Natural Resources, 157 Mich App 774, 778; 404 NW2d 665 (1987). The ultimate objective of pretrial discovery is to make available to all parties, in advance of trial, all relevant facts which might be admitted into evidence at trial. Id. The purpose of witness lists is to avoid "trial by surprise.” Id., 779.

We agree that legitimate reasons may exist permitting parties to testify at trial even if no witness list has been filed. First, the parties are the original adversaries and are generally known to each other from the outset. This should prevent the element of surprise occurring when unlisted witnesses are called to testify. See Stepp, supra. Second, disallowing the parties to testify when the witness list is stricken or prevented from being filed is the equivalent of a dismissal. Allowing a trial court to routinely dismiss an action whenever a witness list is stricken appears inconsistent with the various discretionary discovery sanction op*629tions available to it. See Houston v Southwest Detroit Hosp, 166 Mich App 623, 627-629; 420 NW2d 835 (1987). Refusing to allow witness lists to be filed and granting a dismissal are separate discovery sanction options. Id, 629.

We hold that the trial court has discretion to allow parties to testify once the witness list is stricken or barred from being filed. In exercising its discretion, the trial court should determine whether the party can prove the elements of its position based solely on the parties’ testimony and any other documentary evidence. If not, the action should be dismissed.

In this case, the trial court refused to allow any individual representing the corporation to testify. When the plaintiff is a corporation, any number of individuals could testify on its behalf. We conclude that the trial court did not abuse its discretion in refusing to allow plaintiff’s representatives from testifying. To do so would have opened the door to circumvention of the discovery rule by corporate plaintiffs. When the plaintiff is an individual, the defendant knows from the face of the complaint the identity of the testifying plaintiff. This is not so when the plaintiff is a corporation.

Defendant asserts that, if defendant testified, plaintiff could call rebuttal witnesses to impeach the testimony. See Pastrick v General Telephone Co, 162 Mich App 243, 246; 412 NW2d 279 (1987). In Pastrick, a panel of this Court indicated that an undisclosed witness may testify on rebuttal if the opposing party is not prejudiced by it. However, Pastrick is distinguishable from this case. Here, the circuit court specifically barred the filing of the witness list as a discovery sanction. Allowing undisclosed rebuttal witnesses to testify under these facts would negate the sanction imposed.

We find that the trial court did not abuse its *630discretion in disallowing defendant from testifying. Plaintiff has not shown that it would be able to prove its case based solely on defendant’s testimony, if plaintiff’s representatives and rebuttal witnesses were barred from testifying.

ii

We also conclude that the trial court did not abuse its discretion in dismissing this action with prejudice. MCR 2.504(B)(3). The complaint was filed in August, 1988. Plaintiff did not move to file a late witness list until December 19, 1990. The hearing on that motion was held three days before the scheduled trial date. Due to the age of the case and plaintiff’s extended failure to file a witness list, we find no error warranting reversal.

Affirmed.

Jansen, P.J., concurred.