Opinion
No. 353173
01-28-2021
TOMIKO LEWIS, Plaintiff-Appellant, and ORCHARD LABORATORIES CORP and WOOK KIM M.D., PC, doing business as FARMBROOK INTERVENTIONAL PAIN AND EMG, Intervening Plaintiffs, v. OHIO SECURITY INSURANCE COMPANY, ANDREW FUGGS, S & G CUSTOM COLLISION, and BRITTANY LEWIS, Defendants, and ALI ZAGHIR and BETTER DEAL SALES, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-001910-NF Before: FORT HOOD, P.J., and CAVANAGH and TUKEL, JJ. PER CURIAM.
In this third-party no-fault action, plaintiff appeals by right the trial court's order dismissing with prejudice her case against defendants-appellees, Ali Zaghir and Better Deal Sales, as well as the trial court's subsequent order denying plaintiff's request to reinstate the case. On appeal, plaintiff contends that the trial court erred when it dismissed her case on the basis of plaintiff's failure to timely appear at trial without first considering other available sanctions on the record. We agree and reverse.
Plaintiff's claims against all other defendants, as well as the claims of intervening plaintiffs, were dismissed prior to the action that led to this appeal. Accordingly, use of "defendants" throughout is in reference only to Zaghir and Better Deal Sales.
I. FACTUAL BACKGROUND
On April 26, 2016, plaintiff was injured in an automobile accident. Plaintiff later made first-party claims against her no-fault provider, and third-party claims against the driver of the vehicle in which she was injured, his employer, the owner of the vehicle in which she was injured, as well as defendants Zaghir and Better Deal Sales, who were, respectively, the drive and owner of the other vehicle involved in the collision. Following discovery, every defendant other than defendants Zaghir and Better Deal Sales was dismissed from the case by stipulation. A jury trial was scheduled on plaintiff's claims against those remaining defendants for February 4, 2020.
Plaintiff was instructed to appear at trial by 8:30 a.m., but failed to do so. The trial court apparently indicated that plaintiff would have until 10:00 a.m. to arrive before it took action against her. At approximately 9:32 a.m., after having learned that, despite being en route to the courthouse, plaintiff was unlikely to arrive on time, defendants moved for dismissal. The trial court granted the motion and dismissed plaintiff's claims with prejudice. Thereafter, plaintiff moved to reinstate her case on the basis that the trial court failed to consider lesser available remedies on the record before it dismissed her case. The trial court denied the motion, and this appeal followed.
The dissent suggests that the record is unclear as to whether the trial court gave plaintiff until 10:00 a.m. to arrive at the courthouse, and that the trial court may have given plaintiff until 9:30 a.m. Even were that the case, that ½ hour does not alter our analysis with respect to whether the trial court followed the appropriate procedure in this case, nor our application of that procedure to the circumstances.
II. ANALYSIS
Plaintiff contends that, prior to the trial court dismissing her case with prejudice, Michigan caselaw required the court to evaluate lesser available sanctions to determine whether they might have been more appropriate under the circumstances. We agree.
"A trial court's decision to dismiss an action is reviewed for an abuse of discretion." Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007). We also review for an abuse of discretion a trial court's decision on a motion to reinstate an action. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197 (2000). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. Casey v Auto Owners Ins Co, 273 Mich App 388, 404; 729 NW2d 277. "A trial court necessarily abuses its discretion when it makes an error of law." Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016).
Plaintiff primarily relies on Dean v Tucker, 182 Mich App 27; 451 NW2d 571 (1990), and Vicencio v Ramirez, 211 Mich App 501; 536 NW2d 280 (1995). In Dean, the plaintiff failed to file a witness list in a timely manner, the trial court denied a motion by the plaintiff to extend her time to file the same, and the trial court subsequently granted summary disposition to the defendant on the basis that the plaintiff was barred from presenting necessary witnesses. Dean, 182 Mich App at 29. This Court noted:
While it is within the trial court's authority to bar an expert witness or dismiss an action as a sanction for the failure to timely file a witness list, the fact that such action is discretionary rather than mandatory necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate. The corollary to this is that the mere fact that a witness list was not timely filed does not, in and of itself, justify the imposition of such a sanction. Rather, the record should reflect that the trial court gave careful consideration to the factors involved and considered all of its options in determining what sanction was just and proper in the context of the case before it. Houston v Southwest Detroit Hosp, 166 Mich App 623, 629-630; 420 NW2d 835 (1987). That is, while rules of practice give direction to the process of administering justice and must be followed, their application should not be a fetish to the extent that justice in a particular case is not done. Higgins v Henry Ford Hosp, 384 Mich 633, 637; 186 NW2d 337 (1971); Houston, 166 Mich App at 630. [Dean, 182 Mich App at 32.]This Court further held that trial courts should consider the following factors in determining the appropriateness of a sanction for discovery violations:
(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 engaging in deliberate delay, (6) the degree of compliance by the plaintiff with other provisions of the court's order, (7) any attempt by the plaintiff to timely cure the defect, and (8) whether a lesser sanction would better serve the interests of justice. [Id. at 32-33.]Ultimately, this Court concluded that the dismissal in Dean on the basis of a discovery violation was not warranted under the circumstances. Id. at 35.
Defendants aptly point out that Dean specifically involved a discovery violation, and this case does not. This case involves the trial court's dismissal of an action on the basis of plaintiff's failure to timely appear at trial. Plaintiff suggests that Vicencio resolves the distinction by extending the Dean factors to cases beyond discovery violations. That is, plaintiff contends that Vicencio requires that the Dean factors must be considered by trial courts prior to dismissing a case for reasons in addition to and other than discovery violations, including for a failure to appear at trial.
Indeed, in Vicencio, the trial court dismissed the plaintiff's case for her failure to appear at trial, and this Court reversed. Vicencio, 211 Mich App at 503. Notably different in that case, however, was that at a final settlement conference at which the parties could not agree, "[t]he trial court stated that the case would proceed immediately to trial," and only then did it dismiss the case on the basis that the plaintiff was not present. Id. Sensibly, the plaintiff's primary argument on appeal was that this constituted a due-process violation because the plaintiff had not been afforded notice of the trial date. Id. We agreed. Id. at 504. However, and importantly for this case, we further noted:
Even if plaintiff had received adequate notice of the date of trial, a dismissal here was inappropriate. A court, in its discretion, may dismiss a case with prejudice or enter a default judgment when a party or counsel fails to appear at a duly scheduled trial. MCR 2.504(B)(1); Zerillo v Dyksterhouse, 191 Mich App 228, 230; 470 NW2d 117 (1991) . . . .Defendants contend that Vicencio does not apply because it involved a due-process violation, but they fail to address whatsoever the subsequent language in that case applying the factors from Dean to cases in which a plaintiff fails to appear at trial.
Dismissal is a drastic step that should be taken cautiously. Barlow v John Crane-Houdaille, Inc, 191 Mich App 244, 251; 477 NW2d 133 (1991). Before imposing such a sanction, the trial court is required to carefully evaluate all available options on the record and conclude that the sanction of dismissal is just and proper. Hanks v SLB Management, Inc, 188 Mich App 656, 658; 471 NW2d 621 (1991). Here, because the trial court did not evaluate other available options on the record, it abused its discretion in dismissing the case. Id.; Houston[,] 166 Mich App [at] 631.
Moreover, under these facts, dismissal was inappropriate. Our legal system favors disposition of litigation on the merits. North v Dep't of Mental Health, 427 Mich 659, 662; 397 NW2d 793 (1986). This Court has summarized some of the factors that a court should consider before imposing the sanction of dismissal: (1) whether the violation was wilful or accidental; (2) the party's history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court's orders; (6) attempts to cure the defects; and (7) whether a lesser sanction would better serve the interests of justice. Dean[,] 182 Mich App [at] 32-33. This list should not be considered exhaustive. Id. at 33. [Vicencio, 211 Mich App at 506-507.]
Although defendants failed to cite to the case, we uncovered one unpublished case wherein this Court considered the relevant language from Vicencio nonbinding dicta. In Stricker v Stricker, unpublished per curiam opinion of the Court of Appeals, issued January 16, 2020 (Docket No. 349626), pp 1-2, this Court was tasked with determining whether a trial court had plainly erred when it granted a default judgment against the defendant on the basis of his failure to appear at a settlement conference, and his subsequent failure to appear at a motion hearing for entry of a default judgment against him. Although the defendant failed to preserve the argument, he sought to argue, among other things, that the trial court had abused its discretion by granting the default judgment without considering lesser available remedies. Id. at 4. We first noted the specific remedies available to the trial court and outlined in the Michigan Court Rules for failure to attend a scheduled settlement conference as well as entry of default judgments. Id. With specific regard to whether Vicencio applied to the facts of the case, we noted: "[T]he part of Vicencio applying th[e Dean] factors was dicta because this Court primarily held that dismissal was inappropriate because the plaintiff did not receive adequate notice of the trial date." Id. at 5. We further noted "Vicencio did not hold that the trial court erred in not addressing those factors; rather, it held that consideration of those factors showed that a dismissal was not warranted." Id.
Unpublished opinions are not binding on this Court, but may be considered for their persuasive value. MCR 7.215(C)(1).
Stricker is immediately distinguishable from this case because it involved not only a failure to appear at a settlement conference, but a subsequent failure to appear on a motion for entry of a default judgment that was filed on the basis of the initial failure to appear. Stricker, unpub op at 1-2, 4.
First, we disagree that "Vicencio did not hold that that the trial court erred in not addressing" the relevant factors. The Vicencio Court noted that "a trial court is required to carefully evaluate all available options on the record and conclude that the sanction is just and proper." Vicencio, 211 Mich App at 506. The Vicencio Court then explicitly an unequivocally held that, "because the trial court did not evaluate other available options on the record, it abused its discretion in dismissing the case." Id. at 506-507. Thus, the very reason that the Vicencio Court went on to analyze the relevant factors from Dean was because the trial court in that case should have done so. There would otherwise be little to no logic in the Vicencio Court electing to analyze the same.
Second, we are less confident than the Stricker Court that the portion of Vicencio applying the factors constitutes nonbinding dicta. "Obiter dictum," or what we generally refer to as "dicta," is "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential." Black's Law Dictionary (11th ed). See also Dessart v Burak, 252 Mich App 490, 496; 652 NW2d 669 (2002) ("It is a well settled rule that obiter dicta lacks the force of an adjudication and is not binding under the principle of stare decisis.") (quotation marks and citation omitted). Contrarily, we have before distinguished "judicial dictum" as generally having somewhat different value. "Judicial dictum" is "[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision and therefore not binding even if it may later be accorded some weight." Black's Law Dictionary (11th ed). We have noted that judicial dictum can be used "to guide the judiciary on particular areas of law, and to signal future development of the law," and that, on occasion, "[s]uch judicial dicta is arguably as binding as the precise holding of [a] case." Herteg v Somerset Collection GP, Inc, unpublished per curiam opinion of the Court of Appeals, issued September 20, 2002 (Docket No. 227936), p 4.
While perhaps there is room to argue that the relevant analysis contained in Vicencio is judicial dictum, we are more inclined to conclude from the clear language of that case that Vicencio's discussion and application of Dean was integral to its ultimate holding. Vicencio, 211 Mich App at 506-507. We would put forth that there is a difference between a court summarizing an issue in dicta, and a Court intentionally outlining two, alternative grounds on which an issue may be disposed. As noted, the Vicencio Court held with significant clarity that, "because the trial court did not evaluate other available options on the record, it abused its discretion in dismissing the case." Id. This was not merely nonessential commentary; it was part of the Court's holding. And, simply because the trial court addressed that fact and addressed the fact that the dismissal constituted a due-process violation does not render either statement of law any less binding. That is, under Vicencio, the trial court's actions in that case constituted a due-process violation in light of the plaintiff's lack of notice and an abuse of discretion because the court failed to consider alternative remedies to dismissal. See id. at 504-508. Neither issue was dependent on the other, and both were dispositive. Notably, there is no shortage of Michigan cases reflecting the same conclusion.
Moreover, we note that this issue was likely the reason for Vicencio's publication. While the due-process issue does not appear to have created a close question of law whatsoever, application of the Dean factors to cases not involving discovery violations might have been. See MCR 7.215(B). To that end, it should be noted that the Vicencio Court clearly and explicitly provided future courts with a version of the Dean factors that would not be limited to discovery violations. See Vicencio, 211 Mich App at 507. The Court was not required to do so.
In Swain v Morse, ___ Mich App at ___, ___; ___ NW2d ___ (2020) (Docket No. 346850); slip op at 7, we applied the Vicencio factors to a case involving dismissal of a claim for intentionally false testimony at trial. Although not the same as dismissal for failure to appear, it was also a case not involving a discovery violation, and we broadly noted that the Vicencio factors must be considered "[b]efore dismissing a case" for misconduct. See id. at 6-7. And, apart from Stricker, which involved plain-error review and entry of a default judgment under somewhat dissimilar circumstances, the vast majority of our unpublished caselaw since Vicencio has applied that case where the circumstances are similar to those at hand. See In re Conservatorship of Lee, unpublished per curiam opinion of the Court of Appeals, issued August 20, 2020 (Docket No. 349206), p 4 (noting that Vicencio requires a trial court to assess certain factors on the record prior to dismissing a case as a sanction for a party's failure to appear at trial); Stanow v Beaumont Ctr for Pain Med (On Reconsideration), unpublished per curiam opinion of the Court of Appeals, issued March 17, 2020 (Docket Nos. 346641 and 347275), pp 2-3 (holding that dismissal of a case on the basis of a failure to appear at a show-cause hearing without consideration of the Vicencio factors constituted an abuse of discretion); Corrales v Dunn, unpublished per curiam opinion of the Court of Appeals, issued May 30, 2019 (Docket No. 343586), pp 3-4 (concluding that the trial court abused its discretion by dismissing a claim on the basis of a plaintiff's failure to appear at court-ordered mediation without first considering lesser available sanctions); Romanhuck v Ford Motor Co, unpublished per curiam opinion of the Court of Appeals, issued February 4, 2016 (Docket No. 324088), pp 4-5 (holding that that the trial court abused its discretion by failing to consider the Vicencio factors when it dismissed the plaintiff's case for failure to appear at the scheduled trial); Fisher v Ann Arbor, unpublished per curiam opinion of the Court of Appeals, issued January 30, 2014 (Docket No. 313634), pp 2-3 (noting that trial courts should consider the Vicencio factors prior to dismissing a case on the basis of a party's failure to appear).
With all of the above in mind, we conclude that the Vicencio factors should have been applied by the trial court, and that the trial court abused its discretion in failing to apply them both in its initial dismissal of plaintiff's claim and its subsequent affirmation of the same on the basis of her motion to reinstate her case. And, we further conclude that, applying the Vicencio factors, dismissal with prejudice of plaintiff's case was a harsh penalty indeed.
We note defendants' unpreserved argument that plaintiff's motion was not properly filed. Be that as it may, that fact does not change our conclusion that the trial court initially erred in its dismissal of the case in the first place, nor the fact that the trial court denied plaintiff's motion on the merits and not because of any technical defect.
While defendants point out that plaintiff's untimely appearance at trial was inexcusable, the record evidence simply does not establish that it was willful rather than accidental. Moreover, there was no history below of plaintiff having failed or refused to comply with court orders, having failed to appear at other times, or having caused deliberate delay. There is no evidence that giving plaintiff additional time to arrive at trial or that rescheduling the trial would have prejudiced defendants in anyway, and there was evidence that plaintiff attempted to cure the defect in that, at the very least, she did arrive at trial, albeit approximately one to two hours late. Finally, we agree with plaintiff that lesser sanctions might have been appropriate under the circumstances. Forgetting that monetary sanctions might have been an option, the trial court also could have elected to dismiss plaintiff's case without prejudice before handing down the harsh ruling that it did. See Ellout v Detroit Med Ctr, 285 Mich App 695, 698-699; 777 NW2d 199 (2009) (noting that dismissal is a harsh remedy, but that dismissal with prejudice is "the harshest remedy possible") (quotation marks and citation omitted).
The dissent argues that this conclusion is somehow problematic because no evidentiary hearing as to the Vincencio factors was ever held. To rephrase our statement as to the specific issue of prejudice: the evidence plainly establishes that defendants and their counsel arrived at trial prepared to defend their case. On the basis of that fact alone, we cannot fathom why an evidentiary hearing would be necessary to determine whether a 2-hour postponement or any other remedy other than dismissal with prejudice would have actually prejudiced defendants in such a meaningful way that dismissal with prejudice was either necessary or justified. And, as an aside, we note that, had the trial court followed the proper procedure in this case, it likely would have applied the Vincencio factors on the basis of the record before it—at trial—without ever conducting an additional evidentiary hearing. That is, there is more than enough of a record before us to indicate, without the need for a separate evidentiary hearing, that dismissal with prejudice was not an appropriate remedy at the time that it was imposed by the trial court.
As indicated above, the trial court admitted at the hearing on plaintiff's motion to reinstate her case that it had given plaintiff until 10:00 a.m. to arrive at trial, and there appears to be no dispute that plaintiff arrived sometime around then. Notwithstanding, the trial court elected to dismiss plaintiff's claim with prejudice at approximately 9:32 a.m. after it learned that plaintiff was en route to the courthouse and would likely not arrive by 10:00 a.m. --------
Defendants refer to a number of Michigan cases that are not entirely helpful—and in some cases contradictory—to their argument. First, In Williams v Kroger Food Co, 46 Mich App 514, 517; 208 NW2d 549 (1973), this Court affirmed the dismissal of the plaintiff's case with prejudice when she failed to attend trial on the basis of her dissatisfaction with her counsel. We specifically noted that, although we would not have dismissed the plaintiff's case were we standing in the trial court's shoes, we could not determine that the trial court abused its discretion. Id. First, Williams was decided on the basis of the trial court's conclusion that the plaintiff intentionally refused to attend trial without a valid excuse, which interestingly, involves a consideration of the first factor from Vicencio. Id.; see also Vicencio, 211 Mich App at 507 (noting that prior to dismissal for failure to appear, trial courts should consider "whether the violation was wilful or accidental"). Second, and apart from being nonbinding on this Court pursuant to MCR 7.215(J)(1), Williams was decided long before both Dean and Vicencio, which form the basis of our plaintiff's argument. Accordingly, we see little value in defendants' citation to Williams.
Next, In Rowser v State, unpublished per curiam opinion of the Court of Appeals, issued February 23, 2001 (Docket No. 217326), pp 1-2, we affirmed the dismissal of a plaintiff's case on the basis of his failure to appear at a scheduled settlement conference. However, there was nothing to suggest that the plaintiff was challenging whether the trial court failed to apply Vicencio in this Court's brief opinion. Id. In that same vein, nothing from the opinion suggests that Vicencio was inapplicable. The opinion stands for very little other than the fact that, in that case, the plaintiff failed to establish that the trial court abused its discretion when it dismissed her case for failure to appear. What factors the trial court did or did not consider in electing to dismiss the case, or whether the court considered other available sanctions, simply cannot be gleaned from the face of the opinion.
In Wolf v Clafton, unpublished per curiam opinion of the Court of Appeals, issued September 28, 1999 (Docket No. 210299), p 1, we affirmed the dismissal of a plaintiff's case for refusing to appear at trial. Again, defendants fail to elucidate their argument with respect to Wolf, as there appears to have been no allegation in that case that the lower court failed to apply Vicencio. In fact, our two-paragraph opinion specifically referenced Vicencio as an authority. Id. Thus, to the extent that Wolf appears to have been about the trial court's improper balancing of the factors under Vicencio, the case only hinders defendants' argument that Vicencio is distinguishable and inapplicable whatsoever.
In Owens v Chrysler Corp, unpublished per curiam opinion of the Court of Appeals, issued April 27, 1999 (Docket No. 205210), p 8, we again affirmed the dismissal of a plaintiff's claim on the basis of her failure to appear. However, in Owens, our affirmation was made on the basis of the "incredible" and singular argument by the plaintiff that she did not have notice of her trial date when the evidence clearly established that fact to be untrue because the plaintiff had specifically requested an adjournment of the exact date. Id. at 7-8. Most importantly, and again, defendants seem to ignore that there was no argument in Owens that the trial court failed to consider the Vicencio factors, and that this Court explicitly referenced Vicencio as an authority in that case. Id. at 6, 8.
Finally, in Godbout v Prospect Hills Ltd Partnership, unpublished per curiam opinion of the Court of Appeals, issued September 12, 1997 (Docket No. 194721), p 1, we again affirmed the dismissal of a plaintiff's case for failure to appear at a scheduled trial. Although we noted that "the record [was] devoid of any circumstances that would excuse plaintiff's failure to appear," once again, nothing in Godbout stands for the proposition that the trial court did not apply the Vicencio factors. Id. The case merely stands for the proposition that the trial court did not abuse its discretion when it concluded that the plaintiff had no excuse for his failure to appear, which very well may have been a conclusion drawn as a result of applying the Vicencio factors.
With defendants having failed to provide any law or meritorious analysis to suggest that the Vicencio factors were properly overlooked in this case, or that the trial court needed not explore other available remedies prior to dismissing plaintiff's case, and with all but one distinguishable case questioning the precedential effect of Vicencio since its release, we conclude that the trial court abused its discretion by failing to consider alternate remedies to dismissal under the facts of this case. Moreover, while plaintiff's tardiness certainly may have been sanctionable, there is nothing to suggest that dismissal with prejudice, at that juncture, was warranted.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh