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No. 120459
| AMCO
Builders & Developers, Inc., |
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Rene S. Roupinian (212) 603-6441 |
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Plaintiff-Appellant/Counter-Defendant,
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| vs (Appeal
from Ct of Appeals) |
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(Wayne
-- Murphy, J)
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| Team Ace Joint Venture, et al, |
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Defendant/Counter-Plaintiff/
Cross-Defendant,
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and
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| Intervale Excavating & Demolition, Inc., |
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Ernest R. Bazzana (313) 965-3900 |
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Defendant-Appellee/Cross-Defendant,
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| and |
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| Team Contracting, Inc., et al, |
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Defendants.
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Intervale Excavating
& Demolition Brief on Appeal>>
Background
AMCO Builders & Developers, Inc., sued Team Ace Joint Venture
for breach of contract and tortious interference with a contractual
relationship. AMCO alleged that Team Ace Joint Venture attempted to
circumvent AMCO's contract by dealing with Clarence Carson, a principal
of defendant Intervale Excavating and Demolition, Inc. At a settlement
conference, counsel for AMCO informed the trial judge that, due to defendants'
lack of cooperation, AMCO had been unsuccessful in its attempts to take
Carson's deposition. Wayne County Circuit Judge John A. Murphy ordered
the defendants to produce Carson for deposition within thirty days.
The judge's order provided that failure to produce Carson for deposition
would subject defendants to a motion for a default judgment. When the
defendants failed to comply with the order, AMCO filed a motion for
entry of default judgment against the defendants. At a December 23 hearing
on the motion, defense counsel stated that he had been unable to reach
Carson due to the holidays. Defense counsel also said that he had been
caring for his dying son. The attorney admitted that he had "not
participated" in discovery and that he had not "been available
to properly represent" the defendants, but said that he had restored
communications with his clients. Ultimately, the judge entered a default
judgment in favor of AMCO. The defendants retained new counsel and moved
to set aside the default judgment, arguing that the parties did not
intentionally ignore the court's order. In an affidavit attached to
the motion, Carson stated that had not been apprised by defendants'
former counsel that the court had ordered his deposition within 30 days.
Carson also stated he was not aware that his failure to be deposed within
that time would result in entry of default and default judgment. The
court denied the motion to set aside the default judgment because the
defendants' prior attorney had agreed to produce Carson for deposition
as required by the order. In a 2-1 unpublished per curiam opinion, the
Court of Appeals reversed and remanded the case to the trial court.
AMCO appeals.
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