If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.



### 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**

ARTHUR MERRIWEATHER,

Plaintiff/Counter d efendant, UNPUBLISHED March 14, 2019

v No. 340547

Oakland Circuit Court

MICHAEL ELLISON and WENDEME ENTERTAINMENT, LLC, doing business as WENDEME CREATIVE, LC No. 2017

- 158325

- AV

Defendants/Counter p laintiffs,

and

KIMBERLY WARD,

Other Party

- Appellant,

and

PHILLIP A. RAGAN, JR.,

Other Party,

and

RAMONA P. DESALVO,

Other Party

- Appellee.

ARTHUR MERRIWEATHER,

Plaintiff/Counter d efendant,

v No. 342583

Oakland Circuit Court- 2

- MICHAEL ELLISON, LC No. 2017

- 158325

- AV

Defendant/Counter p laintiff

Appellee,

and

WENDEME ENTERTAINMENT, LLC, doing business as WENDEME CREATIVE,

Defendant/ Counter p laintiff,

and

KIMBERLY WARD,

Other Party,

and

PHILLIP A. RAGAN, JR.,

Other Party

- Appellant,

and

RAMONA P. DESALVO,

Other Party

- Appellee.

Before: B ORRELLO

, P.J., and S WARTZLE and C AMERON

, JJ.

P ER C URIAM

.

In these consolidated appeals, appellants, Kimberly Ward and Philip A. Ragan, Jr., appeal by leave granted 1 the circuit court’s order granting the motion of appellee, Ramona P. DeSalvo, to dismiss Ward and Ragan’s appeal from a district court judgment granting defendants’ motion

for sanctions. We vacate the circuit court ’ s order and remand for further proceedings

.

1 Merriweather v Ellison , unpublished order of the Court of Appeals, entered March 28, 2018 (Docket No. 340547); Merriweather v Ellison , unpublished order of the Court of Appeals, entered March 28, 2018 (Docket No. 342583).- 3

- I. BACKGROUND

A

ppellants are attorneys who successively represented plaintiff, Arthur Merriweather, in

a breach

- of

- contract action that h e filed against defendants, Michael Ellison and Wendeme Entertainment, LLC , in the district court

. Plaintiff alleged that he worked with defendants to

create two music albums and that defendants breached an oral agreement for payment. In 2012, plaintiff voluntarily dismissed his claim. T he district court granted defendants ’ request for sanctions and awarded them $50,885. 3 7 in attorney fees against Ward, Ragan, and plaintiff. Although the parties filed a motion for reconsideration from the district court ’s order awarding

sanctions in 2012, and despite the parties’ repeated request s for a ruling, the district court failed to rule on the motion for reconsideration until 2017, when it denied the motion. In the meantime,

d efendants had assigned the sanctions award to DeSalvo, who represented them in plaintiff’s

action.

Ward and Ragan appealed the district court’s order awarding sanctions to the circuit

court . On appeal to the circuit court, the delay in the district court’s ruling on the motion for reconsideration caused confusion regarding five

- year

- old court records . The circuit court twice

dismissed the appeal for deficiencies and noncompliance with the court rules and twice granted motions to correct the deficiencies and reinstate the appeal

. T he circuit court dismissed the appeal

, for a third time

, on the ground s that Ward and Ragan failed to give required notice of the appeal under MCR 7.104(D)(9) to DeSalvo. The record, however, indicates that Ward and Ragan did not receive correspondence from DeSalvo directing them to serve her with process, rather than defendants, because of the assignment of the sanctions award. Ward and Ragan now appeal to this Court, arguing that the circuit court abused its discretion by dismissing the appeal for failure to provide notice to DeSalvo.

II. ANALYSIS

A. STANDARD OF REVI EW

This Court reviews a circuit court ’ s decision to dismiss an appeal for an abuse of

discre tion. Smith v Merrill Lynch Pierce Fenner & Smith , 155 Mich App 230, 233

- 234; 399 NW2d 481 (1986). A trial court abuses its discretion when its decision is “ outside the range of reasonable and principled outcomes. ” Saffian v Simmons , 477 Mich 8, 12; 727 NW2d 132 (2007).

B

. DISMISSAL AS A SANCT ION

Ward and Ragan argue that the circuit court improperly dismissed their appeal on mere technical grounds. Ward and Ragan contend that

, although they failed to give the proper notice under MCR 7.104(D)(9), DeSa lvo nonetheless received actual notice and was not prejudiced by the deficiency. We agree that the circuit court abused its discretion by dismissing the appeal.

MCR 7.101 et seq . addresses appeals to the circuit court. Along with a claim of appeal,

an appellant must file “ proof that a copy of the claim of appeal and other documents required by this subrule were served on all parties, the trial court or agency, and any other person or officer entitled by law to notice of the appeal. ” MCR 7.104(D)(9). In light of our conclusion that- 4

- dismissal of the appeal was unwarranted, we assume without deciding that DeSalvo, as an assignee, is entitled to notice of appeal under MCR 7.104(D)(9).

Failure to comply with the initial

- filing rules will result in the tri al court ’s notification to

“ the parties that the appeal shall be dismissed unless the deficiency is remedied within 14 days

after service of the notice. ” MCR 7.113(A)(1). Even if a trial court dismisses an appeal, however, an “ appellant may move for rein statement by showing mistake, inadvertence, or excusable neglect ” for failure to comply with the court rules, if the appellant files the motion within 14 days of the dismissal. MCR 7.113(A)(2).

It is well established in our caselaw that dismissal of an appeal is an extreme sanction that

should not b e imposed when no prejudice has resulted. For example, i n Simpson v Mansfield, C

& LMR Co , 38 Mich 626, 6 29 (1878), our Supreme Court noted that “ it has always been held by

this court th at the failure of the appellant to give notice of the appeal did not entitle the appellee to a dismissal as a matter of right. ” In that case, t he Supreme Court stated that the purpose of giving notice was “ to inform the adversary party that the appeal has been taken that he may prepare for it ; but as he must also have notice of hearing, he is not likely to lose any rights by a failure in giving strict notice. ” Id . (emphasis added).

Similarly, in Totman v Royal Oak Sch Dist , 135 Mich App 121, 122

- 123 ; 352 NW2d 364 (1984), this Court held that the circuit court erred in dismissing an appeal on the ground that the appellant adopted as his brief a dissenting opinion from the “ certified record ” of the Michigan Employment Security Commission, rather than a brief that met the requirements of the court

rules then in effect

. When holding that the circuit court abused its discretion in dismissing the appeal, this Court stated that the dismissal was a “ harsh penalty

, ” that t he dissenting opinion adopted by the appellant met all the requirements for a brief

, and that , if properly labeled, the dissenting opinion would have complied with the rules. Id

. at 126. This Court reasoned that the court rules “wisely contemplated that litigants and lawyers might make such errors without suffering the cataclysmic consequences of having a case dismissed without a hearing on the

merits.” Id

. This Court concluded that the circuit court ’ s “ punishment was out of proportion to

the crime. ” Id . at 127. We have held similarly in other decisions. See Smith , 155 Mich App at

232

- 234 (applying Totman and holding that dismissal of the appeal for failure to file a brief within the allotted time was “too harsh a remedy” ); Cody v Wickman, Inc , 137 Mich App 560,

565

- 567; 358 NW2d 372 (1984) (holding that the plaintiff ’ s mislabeled complaint, although technically not in compliance with the court rules, nonetheless was sufficient to vest the circuit court with jurisdiction to hear the appeal because it stated the action that was being br ought, gave a sufficient recitation of the facts, gave the defendants notice, and did not prejudice the

defendants ).

The principles espoused in Simpson

, Smith

, Totman

, Cody , and other decisions convince

us that dismissal of Ward and Ragan ’ s appeal was t oo harsh a punishment for the failure to serve proper notice on DeSalvo . DeSalvo produced no evidence to show that the failure was

“ intentional or flagrant. ” Smith , 155 Mich App at 232

- 234. Moreover, DeSalvo received actual

notice

, and she was able to p repare. Therefore, there was no prejudice to DeSalvo ’ s rights. See

Totman , 135 Mich App at 126

- 127. Finally, other, less extreme remedies existed to cure any

inconvenience or costs to DeSalvo. Smith , 155 Mich App at 232

- 234.- 5

- We vacate the circuit court ’ s decision and remand for further proceedings consistent with this opinion. On remand, the circuit court may consider whether a less extreme sanction, such as

an award of additional attorney fees, is appropriate under the facts of this case. We do not retain jurisdiction.

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle

/s/ Thomas C. Cameron