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STATE OF MICHIGAN
COURT OF APPEALS


CURTIS G. KORNEFFEL and MAUREEN A. KORNEFFEL, Plaintiffs-Appellees, v WENDELL C. FLYNN and MARGARET ANN FLYNN, Defendants-Appellants.

UNPUBLISHED August 1, 2000

No. 207234; 208899 Wayne Circuit Court LC No. 93-334893-CH

Before: Meter, P.J., and Gribbs and Griffin, JJ. PER CURIAM. In this action for reasonable rent pursuant to MCL 600.5750; MSA 27A.5750, defendants appeal an order of judgment in the amount of $1,867,606, rendered in plaintiffs' favor following a bench trial in Wayne Circuit Court. We affirm. I These consolidated appeals stem from a land contract default and forfeiture by the vendees, defendants Flynn, of their interest in a mansion and property along the Detroit River in Grosse Ile. The vendors of the property are plaintiffs, the Korneffels. The origins of this case are related in a prior published Michigan Supreme Court decision, Flynn v Korneffel, 451 Mich 186, 189-190; 547 NW2d 249 (1996), addressing another aspect of the legal conflict herein: On February 1, 1980, Michael and Marylou Baghdoian purchased a large residence situated on a valuable parcel of waterfront property on land contract from Sam and Pamela Piunti. Plaintiffs in the present proceeding, Wendell and Margaret Flynn, purchased the Baghdoians' interest and are the current vendees of the land contract. Subsequently, plaintiffs failed to pay a $376,040.71 balloon payment that became due on February 1, 1988.

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Thereafter, the vendors, the Piuntis, declared the contract forfeit and began summary proceedings in the 33rd District Court. The Flynns neither answered the complaint nor defended their interest in the summary proceedings. On March 30, 1988, the district court entered a judgment of forfeiture and possession for breach of land contract. After entry of default, plaintiffs' ninety-day period of redemption commenced. To perfect this right, plaintiffs were obligated to pay approximately $450,000, inclusive of unpaid real estate taxes. While these proceedings were pending, the current defendants and vendors, Curtis and Maureen Korneffel, purchased the Piunti's interest and were substituted in the summary proceedings action. The redemption period was scheduled to expire June 28, 1988. The Korneffels obtained a writ of restitution on June 29, 1988.1 The Flynns thereafter sought to enforce their right of redemption, unsuccessfully pursuing the matter on appeal to this Court and ultimately, the Supreme Court. The Supreme Court, in the opinion set forth above, held that the Flynns did not properly effectuate redemption pursuant to statute and common law; the Court therefore concluded the judgment of forfeiture and writ of restitution had been properly entered against the present defendants. See id. at 195-207. Various stays during the pendency of the Flynns' appeals allowed them to remain in possession of the property. Consequently, because defendants continued to hold over on the property, the present case seeking reasonable rent was instituted by plaintiffs in December 1993. Defendants pleaded only one affirmative defense to the action: "Another action had been initiated by the same parties involving the same claims." Significant to the present appeal, the trial court sanctioned defendants for their failure to comply with discovery by barring them from presenting any witnesses or exhibits at the bench trial held in July 1997. The trial culminated in a damage award being entered in favor of plaintiffs for rent, waste, and taxes owed by defendants. On September 5, 1997, judgment was entered in favor of plaintiffs in the amount of $1,669,561.80, inclusive of pre-judgment interest, taxable costs, and mediations sanctions. An order denying defendants' motion for a new trial was entered on October 17, 1997. On November 7, 1997, the trial court granted plaintiffs' motion to correct judgment, thereby increasing the amount of the judgment by $198,045, for a total judgment of $1,867,606. Defendants now appeal. 2 II

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As the Supreme Court noted, id. at 190, n 3, the Flynns "not only defaulted in making the final balloon payment, but also had f ailed to make monthly payments on the land contract, and had not paid real estate taxes on the property for a series of years. In fact, the Flynns did not pay taxes on the property for the years 1984-1987, and paid less than half the amount due on the contract. Two appeals have been consolidated in the present matter: defendants' appeal by right of the September 5, 1997, judgment and defendants' appeal by leave granted of the November 7, 1997, order correcting judgment.

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Defendants first contend the trial court abused its discretion in precluding them from presenting any witnesses or exhibits at trial because of their failure to comply with plaintiffs' pretrial discovery requests. We disagree. Defendants did not file a witness list, refused to respond to interrogatories or deposition notices directed to both defendants and failed to allow plaintiffs access to the property. No discovery response was given to plaintiffs even though an order to compel discovery was entered on August 12, 1994, and an order to show cause was entered on August 29, 1994. Plaintiffs ultimately obtained an order compelling an inspection of the property by plaintiffs' two expert witnesses. Defendants' counsel signed the final pretrial order which clearly stated defendants were not to have witnesses or exhibits. MCR 2.313(B)(2) provides in pertinent part: If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may order such sanctions as are just, including, but not limited to the following: (a) an order that the matters regarding which the order was entered or other designated facts may be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) an order refusing to allow the disobedient party to support or oppose designate claims or defenses, or prohibiting the party from introducing designated matters into evidence. The trial court's imposition of discovery sanctions is reviewed for an abuse of discretion. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990); Middleton v Margulis, 162 Mich App 218, 223; 412 NW2d 268 (1987). As explained in Dean, supra at 32-33: Among the factors that should be considered in determining the appropriate sanction are: (1) whether the violation was wilful or accidental; (2) the party's history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice; (5) whether there exists a history of plaintiff's engaging in deliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court's order; (7) an attempt by the plaintiff to timely cure the defect, and (8) whether a lesser sanction would better serve the interests of justice. This list should not be considered exhaustive. [Footnotes omitted.] See also Bass v Combs, 238 Mich App 16, 26-27; 604 NW2d 727 (1999); Chrysler Corp v Home Ins Co, 213 Mich App 610, 612; 540 NW2d 485 (1995); LaCourse v Gupta, 181 Mich App 293, 296-297; 448 NW2d 827 (1989).

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Defendants do not deny there was a failure to comply with discovery in this case. However, defendants blame their former counsel for the transgressions. After changing counsel, defendants moved to amend the final pretrial order barring the presentation of evidence, claiming they were unaware of their former counsel's failure to provide discovery. Defendants now contend they only wanted to present two witnesses at trial

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