Opinion
No. 331133
04-25-2017
KIMBERLY CAROL SCHULTZ, Plaintiff-Appellant, v. DAVID GENDERGESKE and BRIAN MCDOWELL, Defendants-Appellees.
UNPUBLISHED Clare Circuit Court
LC No. 15-900031-CZ Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ. PER CURIAM.
Plaintiff appeals by right the trial court's order granting summary disposition in favor of defendants and its subsequent denial of her motions for rehearing, reconsideration, and relief from judgment. The trial court granted defendants' motion for summary disposition upon plaintiff's counsel's failure to respond to the motion and failure to appear at the scheduled hearing; stating: "No response was ever filed, so the motion is granted and this closes the case." Plaintiff's counsel subsequently explained that he had lost track of the case because of an overwhelming workload and medical tests, and a loss of focus caused by lingering health problems that resulted from his two-day hospitalization approximately two months before the motion hearing. The trial court found that plaintiff did not demonstrate that the court was misled by a palpable error and that the circumstances did not justify relief from judgment. We affirm.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. Under MCR 2.116(C)(7), where the claim is allegedly barred by the expiration of a statutory limitations period, the trial court must accept as true the contents of the complaint, unless they are contradicted by documentary evidence submitted by the moving party. Id. at 119. "An exercise of the court's 'inherent power' may be disturbed only upon a finding that there has been a clear abuse of discretion." Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). This Court reviews a trial court's decision on a motion for reconsideration for an abuse of discretion. Sanders v Perfecting Church, 303 Mich App 1, 8; 840 NW2d 401 (2013). This Court also reviews a trial court's decision whether to grant relief from judgment for an abuse of discretion. Jones v Enertel, Inc, 254 Mich App 432, 434; 656 NW2d 870 (2002). A court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Initially, we agree with plaintiff that MCR 2.116 is not a rule conferring courts with the power to sanction a party. Brenner, 226 Mich App at 155. It is well established that "courts speak only through their orders, judgments and decrees." Cendeck v Cendeck, 305 Mich 447, 450; 9 NW2d 670 (1943). The actual order entered by the trial court mentions nothing of sanctions. The trial court's statement is also consistent with the fact that under MCR 2.116(G)(4), the party opposing a motion for summary disposition is required to "set forth specific facts showing that there is a genuine issue for trial" and if the party fails to do so, "judgment, if appropriate, shall be entered against him or her" (emphasis added). "If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted." Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999) (internal quotation omitted). While we would have preferred some additional explanation by the trial court, we find that it properly granted summary disposition on the basis of plaintiff's failure to establish a genuine question of fact for trial in response to defendants' motion for summary disposition.
Plaintiff next contends that the trial court abused its discretion by denying her motion for rehearing or reconsideration. "Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted." MCR 2.119(F)(3). "The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error." MCR 2.119(F)(3). Plaintiff did set forth reasonable evidence and arguments tending to suggest that summary disposition would have been improper on the merits of the case. However, it is well established that a trial court does not abuse its discretion if it denies a motion for reconsideration based on facts or arguments that could have been presented previously but were not. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 630; 750 NW2d 228 (2008). Because plaintiff could have presented all of the evidence and arguments presented in her motion for rehearing and reconsideration in response to the motion for summary disposition, we cannot find that the trial court abused its discretion by denying the motion.
Finally, plaintiff argues that the court abused its discretion by denying her motion for relief from judgment. Plaintiff requested relief from judgment under MCR 2.612(C)(1)(a), which provides that a trial court can relieve a party from a final judgment or order on the basis of "[m]istake, inadvertence, surprise, or excusable neglect." An attorney's negligence is generally imputed to the client and does not normally constitute grounds for setting aside a default judgment. Pascoe v Sova, 209 Mich App 297, 299; 530 NW2d 781 (1995). "Only if the attorney's neglect is excusable because of the press of circumstances will good grounds be afforded to setting aside a default." Milinsky v Schmidt, Ellis & Assoc, Inc, 48 Mich App 192, 196; 210 NW2d 367 (1973).
The crux of plaintiff's argument was that counsel neglected to respond to the motion for summary disposition and attend the August 19, 2015 motion hearing because of an overwhelming workload, hospitalization for a "heart related issue" on June 8 and 9 of 2015, and medical testing and a loss of focus in the following months. We certainly agree that a medical emergency can be a proper basis for relief from judgment. However, his hospitalization occurred two months before the missed motion hearing. He indicates that his medical condition and testing led to "oversights that allowed the deadlines for this case and related to this motion to pass without appropriate action." However, nothing suggests that he was effectively incapacitated, unable either to respond or to recognize that he could no longer manage as large a workload and needed to orderly transfer representation of some of his cases to other attorneys. Under these circumstances, the trial court did not abuse its discretion by denying relief from judgment under MCR 2.612(C)(1)(a) because there was no excusable neglect in the instant case. Indeed, plaintiff's motion for reconsideration even states that plaintiff simply "lost track of this case due to confusion and loss of focus . . . " (Emphasis added).
Plaintiff also requested relief from judgment under MCR 2.612(C)(1)(f), which provides that a trial court can relieve a party from a final judgment or order on the basis of "[a]ny other reason justifying relief from the operation of the judgment" that does not fall under MCR 2.612(C)(1)(a)-(e). However, "[i]n general, relief is to be granted only where the judgment was obtained by the improper conduct of the party in whose favor it was rendered." McNeil v Caro Community Hosp, 167 Mich App 492, 497; 423 NW2d 241 (1988). In the instant case, the trial court correctly determined that defendants did not obtain the judgment through misconduct, and there were no extraordinary circumstances that warranted setting aside the judgment. Thus, the trial court did not abuse its discretion by denying relief from judgment under MCR 2.612(C)(1)(f).
Affirmed.
/s/ Amy Ronayne Krause
/s/ Kirsten Frank Kelly
/s/ Michael F. Gadola