If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

SHERRY PHILLIPS,

Plaintiff-Appellant,

UNPUBLISHED

December 21, 2023

v No. 363684

Kent Circuit Court

GRAND RAPIDS HOUSING COMMISSION, LC No. 21-011165-NO

Defendant-Appellee.

Before: FEENEY, P.J., and RICK and HOOD, JJ.

PER CURIAM.

Plaintiff, Sherry Phillips, appeals as of right the opinion and order of the trial court granting 

summary disposition to defendant, the Grand Rapids Housing Commission (GRHC), and 

alternatively dismissing her claims for failing to comply with a discovery order. We affirm.

I. BACKGROUND

This case originates from the deactivation of Phillips’s apartment key fob. After Phillips 

became sick, she shared her key fob with her grandson, so he could access her apartment to take 

care of her. This violated her apartment building’s rules and her lease agreement. The facts 

leading to litigation are largely undisputed.

In mid-September 2018, Phillips moved into the Ransom House Apartments in Grand 

Rapids, Michigan. In mid-October 2018, she signed a new lease with GRHC (after an apparent 

error in the “footer” of the previous lease) to live in the Ransom House Apartments, and she 

appears to have continued to live there on a month-to-month basis after the new lease expired in 

late October 2019. Phillips still lived in the Ransom Tower Apartment as of January 31, 2022.

Relevant here, when Phillips signed the October 2018 lease, she agreed “to obey the House 

Rules,” which were attached to the lease and “incorporated [t]herein.” The House Rules, in turn, 

contained a provision related to a tenant’s use of their keys stating:

LOCKS/KEYS
-2-

No tenant shall alter any lock or install a new lock or doorknocker on any

door without the written consent of management. Replacement/additional keys 

must be approved by the Management office and need to be made by our 

maintenance staff at an additional cost. Key are for resident use only and should 

not be given to guests or others to use to gain entry to any Housing Commission 

buildings, apartment, or dwelling units.

[1]

The rules also provided the hours of operation for the apartment building and contact information, 

including the main office number, the number of the “Resident Assistant[]” for emergency afterhours repairs, and a general number for after-hours emergencies.

In December 2019, Phillips, 68 years old at the time, contracted pneumonia and was unable 

to leave her apartment. She asked her grandson to help her with errands, shopping, cleaning, and 

other tasks, so he regularly visited her apartment, sometimes staying the night. Phillips allowed 

her grandson to use her key fob to enter the apartment building. Phillips could not use her cell 

phone to let her grandson into the building because it was “off and not working.”

Phillips recovered from the pneumonia a few weeks later. On December 23, 2019, 

however, Phillips discovered that her key fob no longer worked. According to Phillips, she was 

“locked out” of her apartment from December 23, 2019, through January 8, 2020, as a result. It is 

uncontested that only her key fob was deactivated. As described below, the lock to her unit’s door 

remained unchanged and she was still able to access the apartment building through a phone app 

and contacting building personnel. Phillips claimed she was “forced to stay with friends and 

relatives” and had to pay for food and lodging because she was “locked-out of [her] apartment.” 

On January 6, 2020, Phillips learned that Talima Billups, the apartment building manager, 

deactivated Phillips’s key fob. Phillips stated that she “did not receive any notice of any kind” that 

her fob was deactivated, nor an explanation for the deactivation.

On January 8, 2020, Phillips met with Billups to discuss the access issue. According to 

Phillips, Billups produced two written notices, that Phillips claims she never received, indicating 

that Phillips’s key fob would be deactivated because her grandson was using it. Billups assumed 

that Phillips was using her cell phone to access the building, according to Phillips’s affidavit, but 

Phillips claimed that her phone was “off during this time and was not working.” Phillips explained 

to Billups that she had “no choice but to let her grandson” use the key fob because she was sick 

and could not “let him into the building using [her] cell phone because it was off and not working.” 

Billups reactivated the key fob on January 8, 2020. Phillips felt that she “should be compensated 

for the time [she] was denied access to [her] apartment.”

In early December 2021, Phillips sued the Ransom Avenue Development Corporation, also 

known as Ransom Tower Apartments, and GRHC (collectively, defendants), alleging six claims 

against them: (1) breach of implied warranty against latent defects; (2) breach of implied warranty 

of quiet use and enjoyment; (3) breach of contract; (4) a combined claim of fraud in the inducement 

and violation of the Michigan Consumer Protection Act, MCL 445.901 et seq.; (5) breach by 

 

1 Another provision of the House Rules, “Use of Apartment,” also states: “Guest should not be 

allowed to use your keys or your address to receive mail.”
-3-

constructive eviction; and (6) violation of MCL 600.2918 (unlawful interference with possessory 

interest). Each claim essentially alleged that defendants disabled her key fob, locking her out of 

her apartment unit without warning or eviction proceedings, and that, despite notifying them of 

the problem repeatedly, defendants failed to rectify the issue.

Defendants answered Phillips’s complaint in late January 2022, largely denying her 

allegations. In mid-March 2022 the trial court entered a scheduling order. Relevant here, the court 

scheduled discovery to close on September 12, 2022. 

In early May 2022, GRHC sent interrogatories and its request for production of documents 

to Phillips. Its discovery requests focused on Phillips’s allegations in her complaint and sought 

information related to her alleged damages. In mid-July 2022, the trial court entered an 

uncontested order compelling discovery. The order indicated that Phillips had not yet responded 

to the interrogatories and request for production of documents sent by GRHC in early May 2022. 

The trial court therefore ordered Phillips to “provide full and complete answers to the pending 

Interrogatories and provide all of the requested documents within 14 days of the entry of this 

Order.” Fourteen days from July 18, 2022, was August 1, 2022.

Phillips did not provide any discovery responses until August 10, 2022, nine days after the 

court-imposed deadline in the order compelling discovery responses. GRHC had requested

documents relating to the following: documents prepared by, sent, received, maintained, or 

possessed by Phillips or anyone acting on her behalf relating to the events referenced in her 

complaint; any documents relating to examinations or treatment by a health care professional 

regarding potential physical, emotional, or mental-distress type damages; and all documents 

regarding out-of-pocket expenses, including relocations expenses as referenced in her complaint. 

Phillips responded to these requests for documents by indicating that she was “gathering these 

documents and [would] supplement [her] response upon receipt of same.” She also refused to 

produce information about her online activity “without a showing that such items are relevant 

pursuant to a court order” and would not “release any information with respect to phone records 

without a court order.” GRHC’s interrogatories asked, in relevant part, for Phillips to identify any 

healthcare professionals that had examined or treated her since December 1, 2019. Phillips 

responded that she was “currently in the process of gathering this information.” In other words, 

Phillips’s August 10 response omitted critical discovery that GRHC requested.

In early August 2022, GRHC noticed a deposition for Phillips to take place on August 30, 

2022. Phillips and her counsel failed to appear for the deposition and did not contact GRHC’s 

counsel regarding their nonappearance. 

In mid-September 2022, GRHC filed two motions: one for summary disposition under 

MCR 2.116(C)(7)2and (10) and another for dismissal as a discovery sanction. In its dispositive 

motion, GRHC argued Phillips failed to establish that GRHC breached the lease. By deactivating 

Phillips’s key fob, it asserted, it was simply enforcing the House Rule and protecting the other 

 

2 GRHC relied on MCR 2.116(C)(7) for its argument that governmental immunity barred Phillips’s 

tort claims. Phillips conceded this issue below and does so now on appeal, so we do not address 

it further. 
-4-

tenants. GRHC also argued that Phillips breached the lease by sharing her key fob and that even 

if it breached the lease, Phillips’s breach preceded any breach by GRHC and thus precluded her

from maintaining a breach-of-contract claim against GRHC. GRHC also argued that the lease (an 

express contract) barred the implied-contract claims because there could not be an express and 

implied contract covering the same subject.

GRHC also moved for dismissal of the complaint under MCR 2.313(B) for Phillips’s

violation of the July 2022 discovery order and her failure to appear for her August 30, 2022 

deposition. GRHC argued that Phillip’s failure to comply with the discovery order by providing 

incomplete answers, declining to provide medical authorizations, and “flat out refus[ing] to 

comply” with the court’s July 2022 order, “compromised [its] ability to defend” against Phillips’s 

claims. It further argued that her failure to comply with the discovery order was part of a “pattern 

of failing to comply with discovery” generally, noting her and her attorney’s failure to attend the 

August 30, 2022 deposition. As of the date of the motion to dismiss, Phillips had not explained 

why she failed to attend the deposition or provide adequate discovery responses as ordered.

Phillips responded to GRHC’s motion to dismiss in early October 2022, denying that she 

refused to provide documents and indicating she would supplement her responses. She admitted 

that she and her attorney did not attend her deposition, but offered various explanations including: 

cell phone connection issues, her attorney’s office losing power, and possible issues with the Zoom 

link. Contemporaneous with her response, Phillips moved to extend the scheduling-order dates 

and adjourn GRHC’s dispositive motion. In her motion, she asserted she sent her discovery 

responses to the law firm that previously represented GRHC (Rhoades McKee) instead of the new 

firm (McGraw Morris). According to Phillips, her attorney was apparently “unaware of the fact 

that a substitution was filed substituting in McGraw Morris.” 

In mid-October 2022, Phillips responded to GRHC’s motion for summary disposition. She 

argued that GRHC’s deactivation of her key fob breached the lease’s implied covenant of quiet 

enjoyment by depriving her of the use of her apartment by “deliberately locking her out.” Phillips 

also argued that she did not breach the lease because the rules did not actually prohibit sharing the 

key fob. She argued that the rules providing keys “should not be given to guests,” as opposed to 

“shall not be given to guests,” indicated it was permissive not mandatory. 

After a hearing, the trial court issued its opinion and order granting summary disposition 

to GRHC and alternatively dismissing Phillips’s claims for her failure to comply with discovery. 

Regarding the breach-of-contract claim, the court found that Phillips had failed to establish that 

GRHC breached the lease by deactivating her key fob and failing to notify her of the deactivation. 

It also found that GRHC deactivated the fob because of Phillips’s “misuse” of it, and that she had 

“alternate methods to access her apartment beyond the key fob.” The trial court also found that 

there was no latent defect, noting that GRHC deactivated the fob because Phillips violated the 

building’s rules when she allowed her grandson to use it. It noted again that she had “alternative 

ways to access her apartment.” The court also found that neither Phillips’s claim for breach of the 

implied covenant of quiet enjoyment nor constructive eviction could be maintained because 

although GRHC deactivated her key fob, she “still had alternate means of accessing her 

apartment,” including through her cell phone and contacting the on-site resident agent.
-5-

The trial court also granted GRHC’s motion to dismiss as an alternative to granting 

summary disposition. Referencing MCR 2.313(B)(2)(c) and the factors outlined in Dean v Tucker, 

182 Mich App 27; 451 NW2d 571 (1990),3relevant to discovery sanctions, the court found that 

the “facts and circumstances of this case warrant[ed] dismissal.” It found that Phillips willfully 

violated the July 2022 discovery order, noting that her responses were “over a week past the 

deadline” in the order (August 1, 2022), “incomplete,” and even included refusals to respond to 

some of the requests. The trial court also found that Phillips had a history of failing to abide by

discovery. It noted that she failed to respond to GRHC’s initial discovery requests, only 

complied—though late and incomplete—after an order to compel, and failed to appear for her 

deposition. Related to the deposition, the court noted that Phillips failed to contact GRHC about 

the alleged technological issues and did not reschedule the deposition. The trial court also found 

that Phillips’s failure to timely respond to discovery prejudiced GRHC, noting that the five-month 

delay in providing largely-incomplete discovery deprived GRHC of time to research Phillips’s 

claims and “find experts to counter her claims.” It noted that although case evaluation and a 

settlement conference had not yet been scheduled, they could not proceed if GRHC was “not 

meaningfully informed” of Phillips’s evidence.

Phillips also had a history of deliberate delay, the trial court found, as demonstrated by her 

“consistent resistance to the rules and orders of this Court regarding discovery,” and that she had 

a “near-indifference” to complying with its orders, “favor[ing] greater sanction as well.” The court 

also found that Phillips never attempted to supplement her discovery responses despite GRHC’s 

requests and the court’s orders. And finally, the trial court found that “a lesser sanction would 

[not] better serve the interests of justice.” It indicated that although it could bar Phillips from 

supporting her claims because of her discovery violations, that would have the same effect as 

dismissal because her “inability to support her claims at trial would merely require GRHC to rest 

its proofs to prevail.” The court therefore found that “the interests of justice would be best served 

by dismissal as the more judicially economic option.” This appeal followed.

II. SUMMARY DISPOSITION OF CONTRACT CLAIMS

Phillips argues that the trial court erred by granting summary disposition of her breach-ofcontract and implied-contract claims because genuine issues of material fact remained regarding 

whether GRHC breached the lease. We disagree.

This Court reviews de novo a trial court’s decision on a motion for summary disposition. 

El-Khalil v Oakwood Healthcare Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under 

MCR 2.116(C)(10) “tests the factual sufficiency of a claim.” Id. at 160 (emphasis omitted). In 

considering a motion under MCR 2.116(C)(10), the trial court “must consider all evidence 

submitted by the parties in the light most favorable to the party opposing the motion.” Id. Such a 

motion “may only be granted when there is no genuine issue of material fact.” Id. “A genuine 

 

3 This Court issued the opinion in Dean on January 17, 1990, and released it for publication on 

March 7, 1990. Although Dean is not strictly binding pursuant to MCR 7.215(J)(1) because it was 

issued before November 1, 1990, as a published opinion, it nevertheless “has precedential effect 

under the rule of stare decisis” pursuant to MCR 7.215(C)(2). See Legacy Custom Builders, Inc v 

Rogers, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359213); slip op at 5 n 1.
-6-

issue of material fact exists when the record leaves open an issue upon which reasonable minds 

might differ.” Id. (quotation marks and citation omitted). We review de novo questions regarding 

the interpretation of a lease agreement, in accordance with principles of contract interpretation. In 

re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008).

“The cardinal rule in the interpretation of contracts is to ascertain the intention of the 

parties; to this rule all others are subordinate.” Joseph & Anita Russell Trust v Russell, 338 Mich 

App 170, 179; 979 NW2d 672 (2021) (quotation marks and citation omitted). To do so, courts 

must “examine the language of the contract according to its plain and ordinary meaning.” Ingham 

Co v Mich Co Rd Comm Self-Ins Pool, 508 Mich 461, 477; 975 NW2d 826 (2021) (quotation 

marks and citation omitted). “Absent an ambiguity or internal inconsistency, contractual 

interpretation begins and ends with the actual words of a written agreement.” Id. (quotation marks 

and citation omitted).

The trial court did not err when it granted summary disposition of Phillips’s contract claims 

because she failed to establish a factual dispute regarding whether GRHC breached the lease 

agreement. Phillips contends that GRHC breached the lease agreement when it deactivated her 

key fob and locked her out of her apartment, effectively depriving her of the quiet enjoyment of 

her apartment, constructively evicting her, and forcing her to seek shelter elsewhere before Billups 

reactivated the fob weeks later. But the temporary deactivation of her key fob did not lock her out 

of her actual apartment. Instead, the deactivation temporarily deprived her of one way, among 

several ways, to enter the apartment building, during the time when building management observed 

someone other than Phillips using the key fob. She still had other means to access the building: 

her cell phone app and contacting the resident agent. Her lease agreement also demonstrates that 

she had an actual key to her apartment unit.

Phillips contends that her cell phone did not work, and that there was no evidence that the 

app was available to her or that it would have worked while her key fob was deactivated. First, as 

the trial court pointed out, it was “not GRHC’s responsibility to ensure that Phillips had a working 

cell phone.” Second, Phillips stated in her affidavit that she could not “let [her grandson] into the 

building using [her] cell phone because it was off and not working” and she had “no choice but to 

let [her] grandson use the key FOB.” This suggests that she was at least aware that the cell phone 

app could be used to gain entry to the apartment building.

Phillips also contends that she “did not know who [the resident agent] was or that [an] on 

site resident agent even existed; thus, she certainly did not have any way to contact this person.” 

Phillips’s signature on her lease agreement belies this contention. The lease incorporated the 

building’s rules and included in those rules were various phone numbers tenants could use to 

contact individuals associated with the building, including a general office number, the number of 

the “Resident Assistant[]” (for emergency after-hour repairs), and a general number for after-hours 

emergencies.

Phillips also argues that the trial court erred when it found that Phillips breached the lease 

when she let her grandson use her key fob, noting that the key-sharing rule provided that keys 

“should not be given to guests or others to gain entry” to the buildings. The rule’s use of the 

permissive “should” as opposed to the mandatory “shall,” Phillips argues, meant that she was 

allowed to share her key and therefore did not breach her lease. We disagree.
-7-

There is limited caselaw regarding the distinction between “should” and “shall.” Most 

caselaw relates to the distinction between “may” as permissive and “shall” as mandatory. See, 

e.g., Committee to Ban Fracking in Mich v Bd of State Canvassers, 335 Mich App 384, 396; 966 

NW2d 742 (2021); True Care Physical Therapy, PLLC v Auto Club Group Ins Co, ___ Mich App 

___, ___; ___ NW2d ___ (2023) (Docket No. 362094); slip op at 6-9. This Court’s decision in 

People v Fosnaugh, 248 Mich App 444, 455; 639 NW2d 587 (2001), however, provides perhaps 

the most supportive reasoning for Phillips’s position. There, the defendant was charged with 

operating a vehicle while under the influence of alcohol and given two breath tests, one that 

showed his blood alcohol content was above the legal limit and another that returned an “invalid 

sample” reading. Id. at 447. Relevant here, the issue in Fosnaugh was whether an operation 

manual for administering breath tests required the administering officer to perform a third breath 

test after the second test returned the “invalid sample” reading. Id. at 447-448. The operation 

manual included language related to the procedure following an “invalid sample” reading, stating 

that the “operator should start a new 15 minute observation period and go through the test 

procedure again. A blood test shall be requested if ‘INVALID SAMPLE’ is detected again.” Id. 

at 454 (quotation marks and citation omitted; emphasis in original).

The Fosnaugh Court noted that “should” was not defined in the operation manual or an 

applicable administrative code rule, and that the term had “not been judicially interpreted by our 

courts.” Fosnaugh, 248 Mich App at 454. The Court held that “[w]hile the word ‘should’ can, in 

certain contexts, connote an obligatory effect,” the manual’s drafters “use[d] both the words 

‘should’ and ‘shall.’ ” Id. at 455. The Court was thus “not persuaded that [should] ha[d] an 

obligatory effect” in Fosnaugh. Id. (citing approvingly State v Garrett, 80 Wash App 651; 910 

P2d 552 (1996)). Instead, the Fosnaugh Court presumed that the drafters’ use of both “should” 

and “shall” in the operation manual demonstrated their “inten[t] to distinguish between the terms.” 

Id. But see Merriam-Webster’s College Dictionary (11th ed) (defining “should,” in relevant part, 

as “used in auxiliary function to express obligation, propriety, or expediency”).

As used in the House Rules, “should” is mandatory, not permissive, as Phillips argues. 

Similar to the operation manual in Fosnaugh, the “Keys/Lock” rule includes both “shall” and 

“should.” The rules use “shall” in the context of altering a lock or doorknocker, stating in full: 

“No tenant shall alter any lock or install a new lock or doorknocker on any door without the written 

consent of management.” It then uses “should” in the context of key-sharing, stating in full: “Keys 

are for resident use only and should not be given to guests or others to use to gain entry to any 

Housing Commission buildings, apartment, or dwelling units.” Though Fosnaugh concluded that 

the use of “should” and “shall” by the drafters of the operation manual demonstrated their intent 

to distinguish between the terms, see Fosnaugh, 248 Mich App at 455, the overall context of the 

key-sharing rule connotes an obligatory effect, see id. See also Auto-Owners Ins Co v Seils, 310 

Mich App 132, 148; 871 NW2d 530 (2015) (“[C]ontractual terms must be construed in context” 

and “read in light of the contract as a whole[.]”) (citations omitted). Taken in the context of the 

sentence in which it appears, immediately following the phrase “[k]eys are for resident use only,” 

the only sensible reading of “should” is as obligatory. Phillips reads an isolated portion of the keysharing rule, i.e., that keys “should not be given to guests or others” to gain entry to buildings or 

apartments. She ignores, however, the language immediately preceding that statement, that 

“[k]eys are for resident use only . . . .” Thus, when read in context of the entire key-sharing rule—

including that the keys are for resident-use only—the rule’s use of “should” connotes an obligatory 

or mandatory effect, rather than a permissive one. Fosnaugh, 248 Mich App at 455. This 
-8-

conclusion is not inconsistent with Fosnaugh. See id. (“[T]he word ‘should’ can, in certain 

contexts, connote an obligatory effect . . . .”).

Phillips “agree[d] to obey the House Rules” incorporated into the lease. This included, 

consistent with the analysis above, not sharing her keys with anyone, including her grandson. 

Because she shared her key fob with her grandson, she violated the apartment building’s rules and 

therefore breached her lease agreement. Phillips therefore could not maintain a breach-of-contract 

claim against GRHC. See Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 729-730; 957 

NW2d 858 (2020) (noting that when the initial breach is substantial, “one who first breaches a 

contract cannot maintain an action against the other contracting party for his subsequent breach or 

failure to perform”) (quotation marks and citation omitted).

III. DISMISSAL AS A DISCOVERY SANCTION

Phillips argues that the trial court abused its discretion when it dismissed her claims for her 

failure to comply with the July 2022 stipulated discovery order. We disagree.

“Whether to impose discovery sanctions is entrusted to the discretion of the trial court.” 

Local Area Watch v Grand Rapids, 262 Mich App 136, 147; 683 NW2d 745 (2004). “We review 

a trial court’s imposition of discovery sanctions for an abuse of discretion.” Hardrick v Auto Club 

Ins Ass’n, 294 Mich App 651, 659; 819 NW2d 28 (2011). The trial court abuses its discretion 

when its decision “is outside the range of principled outcomes.” Id. at 659-660. This Court has 

held that a trial court’s failure to evaluate other sanctions options on the record constitutes an abuse 

of discretion. See Vicencio v Ramirez, 211 Mich App 501, 506-507; 536 NW2d 280 (1995) 

(concluding that a trial court’s failure to consider options other than dismissal constituted an abuse 

of discretion). We review de novo the interpretation and application of a court rule such as MCR 

2.313. Id. at 660. We review any factual findings underlying the trial court’s decision for clear 

error. Id., citing MCR 2.613(C). A finding is clearly erroneous when we are definitely and firmly 

convinced the trial court made a mistake. Hardrick, 294 Mich App at 660.

Under MCR 2.313(B)(2), if a party “fails to obey an order to provide or permit discovery,” 

including an order entered related to a motion for an order compelling disclosure or discovery, 

“the court in which the action is pending may order such sanctions as are just . . . .” Such 

permissible sanctions include “an order striking pleadings or parts of pleadings, staying further 

proceedings until the order is obeyed, dismissing the action or proceeding or a part of it, or 

rendering a judgment by default against the disobedient party[.]” MCR 2.313(B)(2)(c). See also 

MCR 2.313(B)(2)(b) (allowing court to enter an order refusing to allow a disobedient party to 

support or oppose claims or defenses or prohibiting them from introducing matters into evidence).

Trial courts have the inherent authority to sanction litigants and their attorneys. Maldonado 

v Ford Motor Co, 476 Mich 372, 375; 719 NW2d 809 (2006) (citations omitted). “This power is 

not governed so much by rule or statute, but by the control necessarily vested in courts to manage 

their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. (citation 

omitted). Dismissal, however, is “a drastic step that should be taken cautiously.” Swain v Morse, 

332 Mich App 510, 518; 957 NW2d 396 (2020). “Our legal system favors disposition of litigation 

on the merits.” Vicencio, 211 Mich App at 507. As a “severe sanction[],” courts should only 
-9-

dismiss a case for “flagrant or wanton refusal to facilitate discovery,” typically when there are 

“repeated violations of a court order.” Swain, 332 Mich App at 518.

In Dean v Tucker, 182 Mich App at 32-33, this Court articulated a nonexhaustive list of 

factors courts should consider when determining an appropriate sanction:

(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) 

an attempt by the plaintiff to timely cure the defect, and (8) whether a lesser 

sanction would better serve the interests of justice. [Citations omitted.]

See Vicencio, 211 Mich App at 507 (articulating the Dean factors). Before dismissing a case, “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.” Vicencio, 211 Mich App at 506. But see In re Contempt 

of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009) (“[A] court speaks through its written 

orders and judgments, not through its oral pronouncements.”). “[I]t is imperative that the trial 

court balance the factors and explain its reasons for imposing” a “grave sanction” such as dismissal 

“in order to allow for meaningful appellate review.” Kalamazoo Oil Co Boerman, 242 Mich App 

75, 88; 618 NW2d 66 (2000).

The trial court did not abuse its discretion when it found that the circumstances of this case 

warranted dismissal. The court found that Phillips willfully violated the July 18, 2022 discovery 

order, noting that she provided incomplete responses that were over a week past the August 1, 

2022 deadline, and that she even refused to respond to some of the requests. See Dean, 182 Mich 

App at 32. The evidence supports these findings. Phillips responded to GRHC’s discovery 

requests on August 10, 2022, nine days past the court-imposed deadline for responding and five 

months after GRHC sent the initial interrogatories and request for production. Those responses, 

when they did arrive, were incomplete, indicating she was “still gathering” information, and 

contained refusals to provide documents without a court order, even though the court’s July 18, 

2022 order compelled Phillips to provide those documents to GRHC.

The trial court also found that Phillips had a history of failing to abide by discovery and of 

engaging in deliberate delay. See Dean, 182 Mich App at 32-33. For these findings, the court 

relied not only on Phillips’s late, incomplete responses from mid-August 2022, but also her failure 

to attend her deposition on August 30, 2022. The court noted that after missing the deposition, 

Phillips failed to contact GRHC regarding her alleged technological issues and did not reschedule 

the deposition. And although Phillips and her attorney may have had technological issues 

stemming from a power outage or issues with a cell phone, that does not excuse completely failing 

to at some point notify GRHC or its attorney of those issues or follow up with rescheduling the 

deposition. Between the delay in Phillips sending discovery responses before the court had to 

intervene, her failure to comply with the deadline imposed by the July 2022 discovery order, her 

late and incomplete responses (and some refusals), and her failure to attend her deposition, we 
-10-

conclude that the trial court did not abuse its discretion in finding that Phillips had a history of 

failing to comply with discovery or of engaging in deliberate delay.

The trial court further found that Phillips’s failure to timely respond to discovery prejudiced 

GRHC. See Dean, 182 Mich App at 133. The court found a five-month delay between GRHC 

serving its discovery requests and the court’s decision on the summary-disposition and dismissal 

motions, noting that Phillips had “still only [provided] incomplete responses and no 

documentation . . . to support her claims.” As the trial court found, this delay prevented GRHC 

from researching the extent of Phillips’s injuries and finding suitable experts to counter her claims. 

And although case evaluation and a settlement had not yet been scheduled, GRHC could not amply 

prepare for either without disclosure of Phillips’s claims and evidence. The trial court did not 

abuse its discretion in finding that Phillips’s failure to comply with discovery prejudiced GRHC.

The trial court found that Phillips “made no attempt [to] supplement her response,” despite 

GRHC’s requests and the court’s orders. Dean, 182 Mich App at 33. Although Phillips claims 

she supplemented her responses in early October 2022, we were unable to locate them in the lower 

court record. But even if she did supplement her responses in early October 2022, they would 

have been past the discovery deadline of September 12, 2022. Until that point, Phillips had only 

provided late, incomplete responses to discovery. Accordingly, because the record does not 

contain Phillips’s alleged supplemental answers from October 2022, the trial court did not abuse 

its discretion by finding that she had failed to supplement her discovery responses.

Finally, the trial court found that a lesser sanction would not “better serve the interests of 

justice.” The court expressly considered whether a lesser sanction—preventing Phillips from 

supporting her claims because of her discovery violations—was warranted. Dean, 182 Mich App 

at 33. It found, however, that this sanction would have the same effect as dismissal “because [her] 

inability to support her claims at trial would merely require GRHC to rest its proofs to prevail.” 

The trial court therefore found that dismissal better served the interests of justice and was the 

“more judicially economic option.” Without any evidence to support her claims, they would 

ultimately fail, so preventing her from supporting her claims would, as the trial court found, lead 

to the same outcome as dismissal. These findings were not outside the range of reasonable and 

principled outcomes. The trial court therefore did not abuse its discretion in finding that a lesser 

sanction would not better serve the interests of justice.

Because the trial court analyzed the relevant Dean factors in its opinion, and none of its 

findings constituted an abuse of discretion, the trial court did not abuse its discretion by dismissing 

Phillips’s claims as a discovery sanction.4

 

4 Though “[s]tare decisis does not arise from a point addressed in obiter dictum,” “an issue that is 

intentionally addressed and decided is not dictum if the issue is germane to the controversy in the 

case, even if the issue was not necessarily decisive of the controversy in the case.” Griswold 

Props, LLC v Lexington Ins Co, 276 Mich App 551, 563; 741 NW2d 549 (2007) (citations 

omitted). See Pew v Mich State Univ, 307 Mich App 328, 334; 859 NW2d 246 (2014) (defining 

“dictum” as “a judicial comment that is not necessary to the decision in the case.”) (citation 
-11-

We affirm.

/s/ Kathleen A. Feeney 

/s/ Michelle M. Rick 

/s/ Noah P. Hood 

 

omitted). Dismissal was not decisive of the controversy, summary disposition was. But it was 

germane to the controversy since GRHC moved for dismissal as a discovery sanction as an 

alternative to its summary-disposition motion. Our analysis of the dismissal issue is thus not 

dictum.