Cummings v. Wayne County , 210 Mich. App. 249 ( 1995 )

210 Mich. App. 249 (1995) 533 N.W.2d 13

CUMMINGS
v.
WAYNE COUNTY

Docket No. 168727.

Michigan Court of Appeals.

Submitted January 4, 1995, at Detroit. Decided April 21, 1995, at 11:30 A.M.

Jeffrey A. Ishbia & Associates, P.C. (by Peter L. Conway and David A. Monroe), for the plaintiff.

Jennifer M. Granholm, Corporation Counsel, and W. Steven Pearson, Assistant Corporation Counsel, for the defendant.

Before: JANSEN, P.J., and MICHAEL J. KELLY and HOOD, JJ.

MICHAEL J. KELLY, J.

Plaintiff appeals as of right an order of the circuit court dismissing his claim against defendant for personal injury. Defendant cross appeals as of right orders denying its motions for summary disposition and for a directed verdict.

Plaintiff was injured when he tripped over the remains of a metal post that protruded from a raised concrete entranceway to a public restroom. The post and concrete pad had once supported privacy screens that stood between the post and the wall of the restroom. At the time of the accident, the restroom was not in use, and there was evidence that it was padlocked.

Shortly before trial, defendant amended its witness list to add three witnesses for testimony regarding the extent of plaintiff's injuries. At the close of plaintiff's case, defendant moved for a directed verdict under MCR 2.515, claiming that plaintiff had failed to produce evidence that the structure on which he tripped fell under the "public use" exception to governmental immunity. The trial court indicated that it would take the motion under advisement over the weekend. The court permitted full discovery of the new witnesses.

Meanwhile, the new witnesses experienced incidents of vandalism and received numerous telephone calls and threats that they would be killed if they testified. Upon reconvening the case, the trial court conferred with the attorneys. Following the conference, the trial court held an evidentiary hearing, during which extensive testimony was elicited and affidavits received from the witnesses regarding the threats and vandalism. These incidents were attributed to plaintiff. Defendant subsequently moved for dismissal with prejudice on the basis of witness tampering. It had stated its intent to bring such a motion at the conference. The trial court granted the motion. It also denied defendant's earlier motion for a directed verdict.

The central issue on appeal is whether dismissal with prejudice was a proper sanction. Plaintiff argues that the trial court lacked authority to impose such a drastic sanction. The trial court held that such authority was "inherent." It also found that plaintiff's actions justified the presumption that his claim lacked merit.

Plaintiff urges that Michigan court rules and statutes do not adequately address a court's authority to sanction the kind of misconduct in this case. However, it would be an absurd anomaly to recognize a court's authority to dismiss an action for lack of progress, see MCR 2.502, or for discovery abuses, see MCR 2.313, and yet leave the court impotent to control its own proceedings when they have been tainted by much more flagrant misconduct. We believe the court has inherent authority to sanction misconduct.

The authority to dismiss a lawsuit for litigant misconduct is a creature of the "clean hands doctrine" and, despite its origins, is applicable to both equitable and legal damages claims. Buchanan Home & Auto Supply Co v Firestone Tire & Rubber Co, 544 F Supp 242, 244-245 (D SC, 1981). The authority is rooted in a court's fundamental interest in protecting its own integrity and that of the judicial process. Id. See also Mas v Coca-Cola Co, 163 F2d 505, 507 (CA 4, 1947). While this Court has recognized that substantive distinctions between law and equity survived the procedural merger of law and equity, see Clarke v Brunswick Corp, 48 Mich. App. 667, 669; 211 NW2d 101 (1973), we do not believe that the distinction prevents a court of law from invoking the "clean hands doctrine" when litigant misconduct constitutes an abuse of the judicial process itself and not just a matter of inequity between the parties. The "clean hands doctrine" applies not only for the protection of the parties but also for the protection of the court. Buchanan Home, supra at 244. "[T]ampering with the administration of justice ... is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society." Hazel-Atlas Glass Co v Hartford-Empire Co, 322 U.S. 238, 246; 64 S. Ct. 997; 88 L. Ed. 1250 (1944). See also Precision Instrument Mfg Co v Automotive Maintenance Machinery Co, 324 U.S. 806, 814-815; 65 S. Ct. 993; 89 L. Ed. 1381 (1945).

Although plaintiff contends that the cases cited by the trial court in support of the order of dismissal involved violations of specific court rules or orders, see, e.g., Roadway Express, Inc v Piper, 447 US 752; 100 S. Ct. 2455; 65 L. Ed. 2d 488 (1980), plaintiff also concedes that at least one of these cases recognized the inherent authority of courts to sanction litigant misconduct, see id. at 764-765. We note that "[b]ecause [these] inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion." Id. at 764. See also Hanks v SLB Management, Inc, 188 Mich. App. 656, 658; 471 NW2d 621 (1991).

We do not believe the trial court's decision to dismiss the action was the result of unrestrained discretion or imprudence. The court clearly acknowledged the harshness of the sanction and balanced it against the gravity of plaintiff's misconduct. The nature of the threats and the actual vandalism committed permanently deprived the court of the opportunity to hear the testimony of witnesses who would be able to testify openly and without fear. Dismissal under these circumstances was not improper.

Nor was dismissal a violation of plaintiff's due process rights. Due process in civil cases generally requires notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker. Klco v Dynamic Training Corp, 192 Mich. App. 39, 42; 480 NW2d 596 (1991). The opportunity to be heard does not mean a full trial-like proceeding, but it does require a hearing to allow a party the chance to know and respond to the evidence.

Here, plaintiff clearly was put on notice of defendant's intent to move for dismissal when his attorney attended the conference regarding the alleged misconduct. The court noted that a new and very serious issue had been interjected into the case. The court conducted a hearing and found that plaintiff attempted "to extort favorable evidence by death threats." Plaintiff had a full opportunity to cross-examine the witnesses and argue his case to the court. Accordingly, plaintiff was not denied due process.

In light of our holding regarding the order of dismissal, we need not address the issues in defendant's cross appeal.

Affirmed.