Labels: appeal of sanction, attorneys fees, Court of Appeals, violated order that had not been entered, Wayne County
On December 10, 2013, in an unpublished opinion, the Michigan Court of Appeals upheld sanctions for the violation of a consent order that was entered after the discovery deadline had already passed. In HTC Global Services, Inc. v. Asher (Docket No. 304096), the appellant, the defendant’s attorney below, was sanctioned for failing to respond to discovery requests by the agreed upon deadline. According to the Court of Appeals, evidence indicated that the appellant had agreed with the plaintiff to answer discovery requests by September 13, 2010. The Trial Court’s consent order was not entered until September 15, 2010, after the deadline had passed, but the agreement was made between the parties on August 31, 2010. The Court of Appeals held that the appellant was properly sanctioned for violating the order, even though it was violated before the order was actually entered, because both parties had prior knowledge of the deadline.
The law with respect to this issue seems somewhat unclear, and the Michigan Court of Appeals cited no authorities with respect to this issue in its HTC Global opinion. Previously, in Bass v Combs, 238 Mich App 16 (1999), the Court of Appeals mentioned without disapproval that the trial court had ordered from the bench that discovery responses be submitted by April 16, 1997, and did not enter a written order stating the same until June 9, 1997, after the deadline had passed. However, in HTC Global, there is not even any mention of a bench ruling—only of an agreement between the parties. Furthermore, in Stevenson v. Nizzi, unpublished opinion per curiam, issued January 10, 2006 (Docket No. 255973), the Court of Appeals stated that “all orders must be in writing” and that the fourteen-day deadline in that case began when the written order was entered.
