                            STATE OF MICHIGAN

                            COURT OF APPEALS



JAMES DECKER and KAY DECKER,                                          FOR PUBLICATION
                                                                      October 28, 2014
               Plaintiffs-Appellants,

v                                                                     No. 316479
                                                                      Oakland Circuit Court
TRUX R US, INC.,                                                      LC No. 2007-086261-NI

               Defendant,

and

AUTO OWNERS INSURANCE COMPANY,

               Garnishee Defendant-Appellee.


Before: RIORDAN, P.J., and CAVANAGH and TALBOT, JJ.

CAVANAGH, J. (dissenting).

       I respectfully dissent.

        The issue in this case is whether MCR 3.101(L)(1) or MCR 3.101(M)(2) prohibit a
plaintiff from conducting discovery if not initiated within 14 days after service of the garnishee
disclosure although MCR 3.101(T) allows for motions to extend the time for conducting
discovery.

         Here, the trial court denied plaintiffs’ motion to extend the time in which to submit
written interrogatories to Auto Owners, noting that subrule (M)(2) mandates that the facts stated
in the disclosure be accepted as true unless discovery was served “within the time allowed by
subrule (L)(1),” i.e., within 14 days after service of the disclosure. However, subrule (T) grants
the trial court discretion to extend the time for conducting discovery in garnishment actions, as in
other civil actions. See MCR 3.101(T)(2) and (T)(3). But neither subrule (L)(1) nor (M)(2)
reference or incorporate the circumstances that result by operation of subrule (T).

        The trial court’s interpretation of subrules (L)(1) and (M)(2), affirmed by the majority,
impermissibly renders nugatory subrule (T). See Wickens v Oakwood Healthcare Sys, 465 Mich
53, 60; 631 NW2d 686 (2001). According to this interpretation, even if a motion to extend time
to conduct discovery was granted under subrule (T), the information obtained would not become
part of the garnishee disclosure and could not be used by plaintiff to contest the facts stated in the
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disclosure. That is, the discovery requests would always be served after the time allowed by
subrule (L)(1), in violation of MCR 3.101(M)(2), when a motion under subrule (T) is granted.

        Accordingly, I would hold that the trial court’s denial of plaintiff’s motion to extend the
time in which to conduct discovery was premised on an erroneous interpretation of law and, thus,
constituted an abuse of discretion. See Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806
(2009) (citation omitted). Further, I would reverse the trial court’s order granting Auto Owners’
motion for summary disposition that was based on the erroneous ruling, and I would remand for
further proceedings, including plaintiff’s service of written interrogatories to Auto Owners.


                                                            /s/ Mark J. Cavanagh




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