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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

DAMONA TAYLOR

,

Plaintiff

- Appell ant

, UNPUBLISHED May 15, 2018

v No. 337001 Wayne Circuit Court

DWAYNE LALONDE

, LC No. 13

- 001487

- NI

Defendant

- Appell ee ,

and

FARMERS INSURANCE EXCHANGE,

Defendant.

Before: B ORRELLO

, P .J., and S AWYER and J ANSEN , JJ.

P ER C URIAM

.

Plaintiff appeals as of right the December 16, 2016 order denying plaintiff ’ s motion for

reinstatement of her automobile negligence case against defendant, Dwayne Lalonde, which was previously dismissed without prejudice under MCR 2.502(A)(1) for a lack of progress in presenting a final order or judgment to the trial court or otherwise contacting the trial court t o inform the court that its records were incorrect regarding the need for a final order or judgment. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

On February 28, 2012, plaintiff was involved in a car accident. Plaintiff was a pas senger in a vehicle traveling westbound on Outer Drive near Plymouth Road in Detroit, Michigan

. T he front of plaintiff ’ s vehicle was struck by defendant ’ s vehicle

, which was traveling northbound on Plymouth Road

, after defendant allegedly ran a red light. Plaintiff was subsequently taken to

Oakwoo d Hospital and Medical Center.

On January 25, 2013, plaintiff filed a two

- count complaint alleg ing defendant negligently operated his automobile, which resulted in an accident that caused plaintiff to sustain a serious impairment of bodily function, and alleging plaintiff was entitled to first

- party no

- fault benefits

from defendant, Farmers Insurance E xchange ( “ Farmers ” ). Plaintiff had difficulty serving defendant, and defendant did not file an answer to plaintiff ’ s complaint until shortly before- 2

- plaintiff ’ s case was administratively dismissed . Meanwhile, plaintiff ’ s first

- party suit against

Fa r mers f or no

- fault benefits ensued and was eventually settled. A stipulated order of dismissal with prejudice regarding plaintiff ’ s no

- fault benefits claim against Farmers was entered on March 28, 2014. The stipulated order of dismissal included a statement ind icating that the stipulated order of dismissal was not a final order and it did not “ resolve the last pending claim

before this Court. ”

On May 29, 2014, the trial court sent plaintiff a notice of intent to dismiss plaintiff ’ s action without prejudice. Th e notice indicated that the plaintiff ’ s case was “ awaiting the entry of the final order or judgment. ” The bottom of the notice indicated that the notice form was based on MCR 2.502(1)(A). The notice then provided, in pertinent part:

1. If the order or judgment has been entered, or if this notice is in error, please notify the clerk of the assigned judge so that the court ’ s record may be

corrected.

2. If a final order or judgment has not been entered by the cutoff date noted above [, June 26, 2014,] or the court otherwise contacted, an order of dismissal without prejudice will be entered by the court and sent to the parties/attorneys at the addresses of record.

After defendant filed its answer on June 19, 2014, plaintiff and defendant began to engage i n discovery. However, on July 8, 2014, the trial court entered an administrative dismissal closing the case for lack of progress in presenting a final order or judgment. More specifically, the administrative dismissal stated, “ [t]his case coming regularl y before the court and no order or judgment having been presented within the ten (10) day period following adjudication by the court and proper notice of impending dismissal has been mailed, it is ordered

that the above entitle d cause is hereby dismissed. ” Similarly to the notice, the bottom of the dismissal indicated that the administrative dismissal form used by the trial court was based on MCR 2.502(A)(1).

Despite the administrative closure, plaintiff and defendant continued to engage in discovery for a couple of months. However, in late August 2014, by plaintiff ’ s own admission, all activity ceased on this action until over two years later when plaintiff f iled a motion for reinstatement on October 28, 2016. The trial court denied reinstatement because “ [g] ood cause [was] not presented and [p]laintiff could have brought this to my attention much earlier. ” Plaintiff moved for reconsideration, which was deni ed because the court found that there was

“ [n]o palpable error. ”

I I. ANALYS IS

On appeal, p laintiff argues that the trial court improperly dismissed her case without prejudice for a lack of progress regarding the presentation of a final order or judgment because there was no basis to show that plaintiff violated the terms of the notice of intent to dismiss.

An issue is properly preserved for appellate r eview if it was raised before the trial court, and the raised issue was subsequently addressed and decided by the trial court. Gen Motors Corp v Dep ’ t of Treasury , 290 Mich App 355, 386; 803 NW2d 698 (2010 ). Plaintiff did not- 3

- raise this issue below. Con sequently, it is unpreserved. A litigant ’ s unpreserved claims are reviewed for plain error affecting substantial rights. Kern v Blethen

- Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000).

With regard to unpreserved issues in civil cases, this Court ma y exercise its discretion to overlook the preservation requirements and reach an otherwise unpreserved issue “ if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented [.] ” Smith v Foerster

- Bolser Constr, Inc , 269 Mich App 424, 427; 711 NW2d 421 (2006). In order to fully adjudicate plaintiff ’ s claims on appeal, we cons ider the

issue.

MCR 2.502, provides, in pertinent part:

**(A) Notice of Proposed Dismissal.**

(1) On motion of a party or on its own initiative, the court may order that an action in which no steps or proceedings appear to have been taken within 91 days be dismissed for lack of progress unless the parties show that progress is being made or that the lack of progress is not attributable to the party seeking

affirmative relief.

* * *

(3) The notice shall be given in the manner provided in MCR 2.501(C) fo r notice of trial.

**(B) Action by Court.**

(1) If a party does not make the required showing, the court may direct the clerk to dismiss the action for lack of progress. Such a dismissal is without prejudice unless the court specifies otherwise.

Here, plaintiff argues that the trial court erred in dismissing her case for a lack of progress because plaintiff did not violate the terms of the notice of intent to dismiss. Specifically, plaintiff argues that because the order dismissing Farmers was already entered and appeared in the court ’ s own internal docket sheet, there was no need to contact the court to assist in correcting its records because the records as they existed were correct. The fundamental problem with plaintiff ’ s argument is that it ignore s the full language of the notice. The notice begins by stating in a header that “ the above action, [Case No. 13

- 001487

- NI,] is awaiting the entry of the final order or judgment. ” The notice then states, in the first paragraph, “ [i]f the order or judgmen t has been entered, or if this notice is in error , please notify the clerk of the assigned judge so that the court ’ s record may be corrected

. ” (Emphasis added.) The notice continues, in the second paragraph, “ [i]f a final judgment or order has not been e ntered by [June 26, 2014] or the court otherwise contacted

, ” the case will be dismissed without prejudice. (Emphasis added.)

He nce , plaintiff overlooks the disjunctive word “ or ” in making her argument. The trial court ’ s

“ use of the disjunctive word ‘ or ’ indicates an ‘ alternative or choice between two things. ’ ” Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co , 500 Mich 191, 209; 895 NW2d 490- 4

- (2017) (citation omitted). Thus, the notice clearly indicated that there was a need to contact the

court, even if the correct order was already entered, because if that was the case, then the notice

was “ in error[.] ” Consequently, the court should be contacted, “ so that the court ’ s record ” about the apparent need for a final order or judgment, “ may be corrected. ” Plaintiff did not do so. By extension, the second paragraph was triggered because there is no evidence on the record that the

court had been “ otherwise contacted ” by the cutoff date to correct its record that a final order or judgment had already been e ntered and that the notice was in error.

Further, plaintiff ’ s argument also overlooks the fact that the stipulated order of dismissal

was not a “ final order ” under MCR 2.604(A), which provides, in pertinent part:

an order or other form of decision adjud icating fewer than all the claims, or the rights and liabilities of fewer than all the parties, does not terminate the action as to any of the claims or parties, and the order is subject to revision before entry of final judgment adjudicating all the claim s and the rights and liabilities of all the parties.

Thus, even if this Court were to presume that the trial court ’ s record was incorrect about

the n eed for a final order, by the terms of the notice, plaintiff should have contacted the trial

court to info rm it that the notice was sent in error because there was no need for a final order

. Admittedly, plaintiff did not do so

. Hence, we conclude that there was a basis to dismiss the case without prejudice under the notice because plaintiff did not comply wit h its terms. Thus, plaintiff ’ s argument fails to persuade that the administrative dismissal of plaintiff ’ s case was improper.

Next, plaintiff argues on appeal that the trial court abused its discretion in refusing to reinstate plaintiff ’ s case. A trial court ’ s decision regarding a motion to reinstate an action dismissed for a lack of progress is reviewed for an abuse of discretion. Wickings v Arctic Enterprises, Inc , 244 Mich App 125, 138; 624 NW2d 197 (2000). An abuse of discretion occurs

when the dec ision results in an outcome falling outside the range of reasonable and principled

outcomes. Maldonado v Ford Motor Co , 476 Mich 372, 338; 719 NW2d 809 (2006).

MCR 2.502(C) provides:

**(C) Reinstatement of Dismissed Action**

. On motion for good cause, the court may reinstate an action dismissed for lack of progress on terms the court deems just. On reinstating an action, the court shall enter orders to facilitate the prompt and just disposition of the action.

Plaintiff asserts that under the five factors set forth in Wicking ’ s , 244 Mich App at 142

, the trial court abused its discretion by rejecting her motion for reinstatement.

Wickings provides , in relevant part:

one or more of the following factors may be relevant to determining good cause to reinstate an action one or more of the following factors may be relevant to determining good cause to reinstate an action: (1) procedural or technical error in dismissing the case for lack of progress, (2) the movant ’ s actual diligence before- 5

- dismissal, (3 ) justification for the movant ’ s failure to make progress before dismissal, (4) the movant ’ s diligence in attempting to settle the case or a prompt motion to reinstate it following dismissal, and (5) potential prejudice to the

nonmovant if the action is re instated. [ Wickings , 244 Mich App at 142.]

This Court in Wickings also acknowledged that the se factors were not exhaustive and recognized that a particular factor may not be relevant in a given case. Id

. We do agree with plaintiff that the Wickings fac tors provide a useful framework to analyze plaintiff ’ s claim

. First, as discussed above, plaintiff ’ s specific allegation of procedural error lacks merit given that plaintiff failed to follow the terms of the notice, which weighs against reinstatement. Se cond, while plaintiff was diligent in pursuing her case against Farmers, and appeared, at the outset, to be diligent in pursuing her case against defendant, plaintiff was not diligent in responding to the

trial court ’ s notice, which also weights against re instatement

. Third, at no point during the litigation below or on appeal has plaintiff offered an adequate explanation as to why , during a
two year span, she never contacted the trial court regarding the notice being in error. Consequently, this factor w eighs against reinstatement. Fourth, there is no explanation as to why the parties continued to engage in discovery for a couple of months after the administrative dismissal, yet plaintiff failed to move to reinstate the case during that period. Further, there is no explanation as to why discovery abruptly stopped and why plaintiff failed move to reinstate her case in light of the abrupt stoppage of discovery, which suggests plaintiff was not diligently pursuing her case as she alleges. Critically, there is no explanation as to why it took over two

years to bring the matter back to the trial court ’ s attention

. Given that the first four factors strongly suggest that reinstatement was inappropriate for reasons wholly related to plaintiff ’ s conduct, and giv en that the fifth factor would only mildly support reinstatement if there were no prejudice to defendant at all, it is not necessary to fully consider the fifth factor because it cannot overcome the combined force of the other four factors. In sum, we con clude that the trial court did not abuse its discretion in denying plaintiff ’ s motion for reinstatement.

Affirmed. No costs are accessed. MCR 7.219(A).

/s/ Stephen L. Borrello /s/ David H. Sawyer

/s/ Kathleen Jansen