COOPER
v.
AUTOMOTIVE FINISHES, INC.
Docket No. 53696.
Michigan Court of Appeals.
Decided September 11, 1981.Kurzman & Phelan, for plaintiff.
Karbel, Eiges, Rothstein & Karbel, P.C., for defendant.
Before: V.J. BRENNAN, P.J., and T.M. BURNS and R.H. PANNUCCI,[*] JJ.
V.J. BRENNAN, P.J.
Defendants appeal as of right from a judgment in favor of plaintiff entered on September 4, 1980, pursuant to an order denying defendants' motion for leave to file a belated rejection of a mediation board's evaluation and to set aside a judgment, entered on September 3, 1980, by Wayne County Circuit Court Judge Harry J. Dingeman.
Plaintiff's complaint alleged that plaintiff was wrongfully discharged from his employment solely on the basis of his age. A notice of mediation was mailed to the attorneys of record setting the hearing for May 22, 1980. The mediation board unanimously evaluated plaintiff's claim at $4,500. This notice was mailed to the attorneys on May 22, 1980. The notice stated that if the evaluation was not rejected within 40 days, it "shall be deemed to be accepted" and an appropriate judgment entered pursuant to Wayne County Court Rule 403 (WCCR 403). In a notice dated July 8, 1980, the mediation *532 board notified both attorneys of record that the evaluation had been accepted by the failure to reject the evaluation as provided by rule 403.7(e) and, accordingly, a judgment was being entered pursuant to the provision of rule 403.15(a).
Shortly thereafter, defendants filed a motion for leave to file a belated rejection of the mediation board's evaluation of plaintiff's claim and to set aside the judgment. The motion was heard on July 25, 1980. Counsel candidly admitted that he did not realize the Wayne County court rule had been amended to require written rejection and had proceeded under the old rule that a failure to accept amounted to a rejection. Counsel argued that he had not intended to accept the evaluation, especially since defendants believed plaintiff's claim had no value whatsoever. He stated that in "good conscience" the judgment should be set aside. The court took the matter under advisement. An opinion was filed on August 8, 1980, in which the court found that defendants inadvertently failed to reject the evaluation in accordance with WCCR 403.7(e) and then denied the motion, stating:
"Although there appear to be equitable considerations here which might be considered favorably by an appellate court, it is the opinion of this court that the local court rule provides it with no discretion in interpretation thereof."
An order denying the motion was entered on September 3, 1980, and a judgment in favor of plaintiff was entered on September 4, 1980.
The issues on appeal require interpretation of the lower court's discretion under primarily two court rules: Wayne County Court Rules 403.7(e) and 403.15(a), dealing with entry of judgment on *533 an unrejected mediation evaluation, and GCR 1963, 528.3, dealing with relief from a final judgment.
On appeal, defendants argue that the lower court erred in finding that it had "no discretion in interpretation" of WCCR 403, and, consequently, that it was obligated to deny their motion to file a belated rejection and to enter final judgment on the mediation evaluation.
In this determination, we find no error. The language of WCCR 403 is clear and unambiguous in requiring written acceptance or rejection within 40 days and in providing that "a judgment will be entered" if the evaluation is not rejected. WCCR 403.7(e), 403.15(a). Defendants' failure to respond to the mediation evaluation must be construed under the local court rule as substantively accepting the evaluation. The policy of the rule is to expedite and simplify final settlement of cases. This Court concludes that the time limitations operate to achieve these ends and that no party is prejudiced by a strict enforcement of the rule. Denial of the motion to file a belated rejection and entry of final judgment was therefore proper.
The foregoing determination, however, does not preclude automatically any possibility of relief from the resultant final judgment. GCR 1963, 528.3 provides broadly for discretionary relief from a final judgment upon any grounds that would establish the injustice of permitting the judgment to stand. This provision provides the mechanism by which the court is permitted to exercise its discretion in striking a balance between the desire to achieve finality and to remedy injustice.
GCR 1963, 528.3 provides in pertinent part that:
"On motion and upon such terms as are just, the *534 court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * * (6) any other reason justifying relief from the operation of the judgment."
We conclude that this subrule 528.3 was available to the court to enable it to make a discretionary decision on whether relief could be granted from the mediation final judgment. In short, the court had the power under GCR 1963, 528.3 to consider whether to grant or deny a motion for relief on the basis of the enumerated grounds.
Since the trial court can exercise its discretionary power under GCR 1963, 528.3, we reverse and remand for the court's discretionary determination of whether counsel's admitted unawareness of the necessity to send a written rejection within 40 days constitutes either mistake, inadvertence, surprise, excusable neglect, or a reason justifying relief from the operation of the judgment.
No costs on this appeal to either party. We retain no further jurisdiction.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.