Opinion
No. 123631.
October 17, 2003.
Leave to Appeal Denied.
No. 123631; Court of Appeals No. 238882.
Although I concur in the order denying leave, I believe that the plain language of MCR 2.401(G) does not require a trial court to evaluate all available options on the record before concluding that the sanction of dismissal is proper, contrary to Vicencio v. Jaime Ramirez, MD, PC, 211 Mich App 501, 506 (1995). MCR 2.401(G) provides that the failure to attend a scheduled conference is grounds for dismissal unless the court determines that dismissal would cause manifest injustice or the failure to attend was not caused by the culpable negligence of the party or attorney.
The requirement that a trial court evaluate all available options on the record before concluding that the sanction of dismissal is proper is extratextual, having no basis in the plain language of the court rule. Although I agree with the denial given the facts of this case, I would repudiate that extratextual requirement at the next available opportunity and instead apply only the requirements found in the plain language of MCR 2.401(G).