If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 19-001911-NH Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ. PER CURIAM.
Plaintiff, Jonvon Avory Matlock, appeals as of right the trial court's order granting the motion of defendant, Hearthside Food Solutions, LLC, to dismiss this negligence action for plaintiff's failure to participate in discovery. We affirm.
In March 2016, plaintiff was involved in an accident as the driver of a semitruck trailer, in the course of his employment with J.B. Hunt Transport, Inc. Plaintiff picked up a load from defendant's warehouse and was transporting the goods on a roadway when the load shifted, which caused the trailer to become unstable and roll over. Plaintiff sued defendant, alleging a negligence claim for defendant's loading and inspection of the load that plaintiff was transporting.
In March 2019, plaintiff served defendant with the complaint, interrogatories, and a request to produce documents. In June 2019, plaintiff's attorney provided defendant with various employment documents and information that he obtained from J.B. Hunt. On June 24, 2019, defendant filed its answer denying liability for plaintiffs' claims, and also served plaintiff with interrogatories, a request to produce documents, and a request for executed authorizations. Plaintiff did not respond to defendants' discovery requests.
In October 2019, defendant filed a motion to compel discovery of plaintiff's responses to interrogatories and production of documents. Defendant argued that, on September 9, September 18, and October 1, defense counsel had asked plaintiff's counsel about the interrogatories and discovery requests and had provided plaintiff with a proposed order to compel discovery, but had received no response from plaintiff's counsel. Defendant argued that plaintiff's delay in providing discovery adversely impacted its ability to prepare its defense. The hearing regarding defendant's motion to compel was adjourned on three occasions, at plaintiff's request. On December 18, the parties agreed to a stipulated order that plaintiff would provide answers to defendant's interrogatories within 14 days of the entry of the order. Plaintiff's responses to the interrogatories and discovery requests were due to defendant on or before January 2, 2020.
When plaintiff did not respond to the discovery requests (again), defendant filed a motion to dismiss the case under MCR 2.313(B). Defendant argued that the trial court had authority to dismiss the case based on plaintiff's failure to comply with a court order. Defendant also argued that it had provided plaintiff with multiple opportunities to produce discovery voluntarily but that plaintiff had failed to do so.
Plaintiff's attorney filed an emergency motion to withdraw as counsel and to stay the proceedings, claiming a breakdown of the attorney-client relationship. Plaintiff argued that the breakdown of the attorney-client relationship occurred in part because of his difficulty communicating with his attorney while he was incarcerated on unrelated convictions. Plaintiff also claimed that he would retain new counsel and would fully participate in discovery after his release from jail, which was scheduled to occur in February 2020. Defendant did not oppose plaintiff's request to allow plaintiff's counsel to withdraw, but opposed plaintiff's request to stay proceedings. Defendant argued that the stay of proceedings was futile because dismissal was appropriate in this case.
At the hearing on defendant's motion to dismiss, the trial court stated that plaintiff had a "long history" of failing to answer the interrogatories, that plaintiff had ignored the order compelling discovery, and that defense counsel had sent plaintiff numerous communications in an attempt to obtain discovery. The trial court granted defendant's motion and dismissed the case with prejudice. The trial court did not address plaintiff's motions to withdraw as counsel and to stay proceedings.
Plaintiff filed a motion for reconsideration in the trial court. In that motion, plaintiff argued—for the first time—that dismissal was the harshest sanction for his failure to participate in discovery and that dismissal was not justified based on the circumstances of this case. Plaintiff argued that he did not intentionally cause delay in responding to discovery requests and that a sanction less drastic than dismissal was more appropriate here. Plaintiff also argued that the trial court erred by failing to decide the motion to withdraw as counsel and to stay proceedings. Defendant opposed plaintiff's motion for reconsideration and argued that it was untimely. The trial court determined that plaintiff had failed to demonstrate a palpable error by which the trial court or parties had been misled. The trial court therefore denied the motion for reconsideration.
Plaintiff now appeals as of right the trial court's dismissal of the case.
Plaintiff argues that the trial court abused its discretion by granting defendant's motion to dismiss based on plaintiff's failure to respond to discovery requests.
At the outset, we note that plaintiff has failed to preserve for appeal his argument that dismissal was too harsh a sanction for his failure to respond to defendant's discovery requests. "Where an issue is first presented in a motion for reconsideration, it is not properly preserved." See Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). "[G]enerally a failure to timely raise an issue waives review of that issue on appeal." Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (cleaned up). On appeal, defendant pointed out in its response brief that plaintiff did not preserve the issue for appellate review, and plaintiff failed to take the opportunity to address the preservation issue in a reply brief. The issue is waived, and we affirm on this basis alone.
For the benefit of the parties, we briefly address the merits, assuming arguendo that plaintiff had not waived appellate review. "Trial courts possess the inherent authority to sanction litigants and their counsel, including the right to dismiss an action." Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006) (cleaned up). "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).
A trial court may dismiss an action for a party's failure to comply with a trial-court order compelling discovery, MCR 2.313(B)(2)(c), and for a party's failure to comply with the court rules or a trial-court order. See MCR 2.504(B)(1). Although a trial court has discretion to dismiss a case, "[o]ur legal system favors disposition of litigation on the merits," and "[d]ismissal is a drastic step that should be taken cautiously." Vicencio v Ramirez, 211 Mich App 501, 506-507; 536 NW2d 280 (1995). "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." Id. In evaluating the available options and determining whether dismissal is just and proper, the trial court should consider:
(1) whether the violation was wilful [sic] 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 defect; and (7) whether a lesser sanction would better serve the interests of justice. [Id. at 507.]
In this case, plaintiff did not respond to defendant's discovery requests on or before the due date. Plaintiff's failure to respond prompted defendant to inquire about plaintiff's answers to the discovery requests on three separate occasions and to move the trial court to compel plaintiff to respond months after the original due date. After plaintiff failed to respond and after the hearing regarding defendant's motion to compel was adjourned on three separate occasions, plaintiff and defendant stipulated to an order compelling plaintiff to answer the discovery requests. Plaintiff did not comply with the stipulated order and never provided the requested discovery before the trial court dismissed the case. Plaintiff's failure to provide answers to the interrogatories prompted defendant to move the trial court to dismiss this case. Plaintiff's extended delay and ultimate failure to respond to the interrogatories supports a conclusion that plaintiff's conduct was willful. Additionally, there was no indication that plaintiff's failure to respond to the interrogatories was accidental or the result of a failure to receive notice of the requests for discovery.
Plaintiff repeatedly failed to respond to requests for the discovery materials and repeatedly sought adjournments of the proceedings. Although plaintiff claims that the delay in answering the discovery requests occurred because he was incarcerated, plaintiff stipulated to the order to compel discovery after he was incarcerated and after his counsel was aware of any communication issues. Yet, plaintiff did not raise these concerns until after he failed to comply with the terms of the stipulated order. Therefore, plaintiff had a history of delay and failing to respond to defendant. Additionally, plaintiff's failure to respond to the interrogatories prejudiced defendant because it was deprived of the opportunity to review plaintiff's answers, identify witnesses, and evaluate or defend against plaintiff's claim. And plaintiff never complied with any other parts of the trial court's orders. Nor did plaintiff attempt to cure the defects in a timely manner.
Thus, even had plaintiff preserved the claim for appellate review, there was no abuse of discretion here.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Jonathan Tukel