TONJA BARKER V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
TONJA BARKER,
UNPUBLISHED
January 26, 2001
Plaintiff-Appellant,
v
CITY OF DETROIT, DETROIT POLICE
DEPARTMENT, DETROIT POLICE CHIEF, and
OFFICER SNIPES,
No. 218876
Wayne Circuit Court
LC No. 97-737086-CZ
Defendants-Appellees.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
Plaintiff appeals as of right the circuit court’s order dismissing her action with prejudice
for failing to post a $2,000 bond to secure defense costs. The circuit court imposed the bond as a
sanction for plaintiff’s failure to comply with discovery. We affirm.
Plaintiff first argues that the circuit court erred by imposing a sanction against her for
abuse of the discovery process. The record reveals that plaintiff effectively failed to appear at her
scheduled deposition, failed to appear or participate in mediation and otherwise failed to provide
any meaningful discovery for defendants, despite numerous discovery requests and two
extensions of the discovery deadline. Based on this record, we cannot find that the circuit court
abused its discretion by imposing a reasonable bond as a sanction for plaintiff’s failure to comply
with discovery. MCR 2.313(D); Bass v Combs, 238 Mich App 16, 26; 604 NW2d 727 (1999).
Plaintiff next argues that the circuit court erred by failing to consider her financial ability
before ordering that a bond be posted. MCR 2.109(B)(1) requires the court to consider financial
ability before requiring a bond pursuant to that rule. However, the requirements of MCR 2.109
do not apply to this case. The circuit court did not impose a bond under MCR 2.109(A) in
response to a factually deficient complaint or a questionable theory of recovery. Instead, the
circuit court imposed the bond pursuant to its power under MCR 2.313(D), as a sanction for
plaintiff’s failure to provide discovery.1 Further, plaintiff made no objection to the amount of the
1
Plaintiff also argues that the circuit court erred by dismissing her complaint without addressing
the legitimacy of her claims as required by MCR 2.109(B)(1). Again, the requirements of MCR
(continued…)
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bond at the time it was ordered. The court required plaintiff to post the bond within 21 days of
the court’s order. Plaintiff was warned that failure to post the bond would result in dismissal of
her claims with prejudice. Plaintiff did not allege a financial inability to post the bond until the
21 day period for obtaining the bond had lapsed and defendant was back before the court asking
for a dismissal of plaintiff’s claims. Plaintiff did not support her claims of poverty with an
affidavit until one week after the circuit court granted the motion to dismiss. Based on these
facts, we cannot conclude that the circuit court abused its discretion by failing to consider
plaintiff’s claim of financial inability to post bond.
Finally, plaintiff argues that the circuit court intended to dismiss her claims without
prejudice. It is well established that a court speaks through its written and signed orders.
Tiedman v Tiedman, 400 Mich 571, 576, 255 NW2d 632 (1977). The circuit court’s order
requiring a bond provides that “if Plaintiff fails to file the Bond within the 21 day period, this
case shall be dismissed with prejudice and without costs.” Accordingly, we find no error.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
(…continued)
2.109 do not apply in this case. Dismissal with prejudice was an appropriate sanction in light of
the circumstances presented.
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