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### STATE OF MICHIGAN

COURT OF APPEALS

ARMIN PHILLIPS,

Plaintiff-Appellant, UNPUBLISHED January 14, 2016

v No. 324723 Livingston Circuit Court ROGER POMMIER and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 13-027332-NI

Defendants-Appellees.

Before: R ONAYNE K RAUSE , P.J., and G ADOLA and O’B RIEN , JJ.

P ER C URIAM

. In this no-fault action, plain tiff appeals as of right the tri al court order dismissing the litigation with prejudice for failing to post a bond for securi ty for costs. We affirm.

On August 31, 2012, plaintiff was allegedly injured in an auto mobile accident when he was struck by a vehicle driven by defendant, Roger Pommier (Pom mier). On February 15, 2013, plaintiff filed suit against defe ndant Pommier, raising a claim of negligence, and against defendant State Farm Mutual Aut omobile Insurance Company (State Farm), seeking first-party no-fault insurance benefits. In the course of discovery, it wa s learned that plaintiff suffered multiple injuries from accidents involving work, motor vehicles , and slip and falls since 1992. Over a 20-year period, plainti ff sought treatment at various fa cilities, but his frequency of visits caused medical personnel to question whether plaintiff had beco me addicted to pain medication. Plaintiff reportedly became angry when medical personnel failed to prescribe narcotics or suggested he seek treatment for addiction. Furthermore, blood analysis revealed that plaintiff was also self-medicating with illegal substances. After the Au gust 31, 2012 accident, plaintiff was taken to the hospital, but additional testing did not revea l the presence of any new or exacerbated injury. In 2013, plaintiff had surgery to correct a condition that arose in 2011.

During the course of discovery, defendants had difficulty obta ining plaintiff’s compliance during the independent medical examination (IME) and receiving authorization to obtain his medical records. Ultimately, defendant State Farm moved for su mmary disposition of the litigation until plaintiff cooperated and attended a second IME at plaintiff’s expense. The trial court denied the motion for su mmary disposition, but ordered pl aintiff to sign the necessary authorizations to release his me dical records and to attend a s econd IME. On July 3, 2014,-2- plaintiff’s counsel filed a motion to withdraw because of a bre akdown in communication. On July 10, 2014, the trial court gr anted the motion and gave plai ntiff 30 days to obtain new counsel or be deemed to proceed in propria persona

. On September 18, 2014, defendant Pommier filed a motion and br ief seeking security for costs. It was alleged that plaintiff could not produce any evi dence that the August 31, 2012 accident had any impact on his pain complaints that preceded th e accident. Although plaintiff asserted that his pain was exacerbated by the accident, and he was disabled from performing chores or even putting his socks on, the police were called to plaintiff’s home in April 2013, because plaintiff punched his wife in the face and also damaged a wall in their home. Defendant Pommier claimed that the documentary evidence demonstrated that plaintiff’s claims were groundless and unwarranted such that a bond was necessary. Alt hough plaintiff’s new counsel filed an appearance with the court on September 22, 2014, he di d not file a response to the motion or appear at the September 25, 2014 hearing. The trial court granted defendant Pommier’s request for a $10,000 bond.

Similarly, on October 1, 2014, defendant State Farm filed a mo tion for security for costs, submitting that plaintiff’s claims were premised on a tenuous l egal theory and appeared to be groundless and unwarranted in light of the documentary evidence involving plaintiff’s medical history. Plaintiff did not file a response to this motion. In stead, plaintiff filed a motion for reconsideration of the trial cour t’s grant of security for cost s in favor of defendant Pommier. Plaintiff alleged that the seri ous automobile accident could no t be negated by the prejudicial and irrelevant information argued by defendants, and plaintiff’s do ctor verified that his medical conditions may have been exacerbated by the August 2012 motor vehicle acciden t with defendant Pommier. At the hearing on defendant State Farm’s mo tion for security for costs, plaintiff and his counsel did not appear, and the trial court g ranted defendant State Farm’s request for a $20,000 bond to be posted by October 22, 2014.

On October 23, 2014, the trial court heard oral arguments rega rding defendants’ request for dismissal with prejudice in light of plaintiff’s failure to post a bond as security for costs. Although plaintiff’s counsel appeared at the hearing, he did no t contest the dismissal, but sought to argue the merits of his motion for reconsideration. The tri al court dismissed plaintiff’s case with prejudice for failing to post security for costs.

On appeal, plaintiff contends that the trial court erred by gr anting the request for security for costs, by denying his motion for reconsideration, and by di smissing the action with prejudice. 1 We disagree. The trial court’s decision to order a bond for security for costs is reviewed for an abuse of discretion. Farleigh v Amalgamated Transit Union, Local 1251 , 199 Mich App 631, 633; 502 NW2d 371 (1993). The trial court’s deci sion regarding a motion for reconsideration is also reviewed for an abuse of discretion. Sanders v Perfecting Church , 303 Mich App 1, 8-9; 840 NW2d 401 (2013). A decision constitutes a n abuse of discretion when it

1 These claims are preserved for appellate review because they w ere addressed and decided in the trial court. Henderson v Mich Dep’t of Treasury , 307 Mich App 1, 7-8; 858 NW2d 733 (2014).-3- falls outside the range of reasona ble and principled outcomes. Holman v Rasak , 486 Mich 429, 448 n 10; 785 NW2d 98 (2010).

MCR 2.109 governs “Security for Costs” and provides:

(A) Motion. On motion of a party against whom a claim has been asserted in a civil action, if it appears reasonable and proper , the court may order the opposing party to file with the court clerk a bond with sur ety as required by the court in an amount sufficient to cover all costs and other recoverable expenses that may be awarded by the trial court, or, if the claiming par ty appeals, by the trial and appellate courts. The c ourt shall determine the amou nt in its discretion. MCR 3.604(E) and (F) govern obj ections to the surety.

(B) Exceptions. Subrule (A) does not apply in the following circumstances:

(1) The court may allow a party to proceed without furnishing security for costs if the party’s pleading states a legitimate claim and the party shows by affidavit that he or she is fina ncially unable to furnish a sec urity bond.

(2) Security shall not be required of:

(a) the United States or an agency or instrumentality of the United States;

(b) the State of Michigan or a governmental unit of the state

, including but not limited to a public, municipal, quasi-municip al or governmental corporation, unincorporated boa rd, public body, or political su bdivision; or

(c) an officer of a governmental unit or agency exempt from security who brings an action i n his or her official capacity.

(C) Modification of Order. The court may order new or additional security at any time on just terms,

(1) if the party or the sur ety moves out of Michigan, or

(2) if the original amount of the bond proves insufficient.

A person who becomes a new or additional surety is liable for a ll costs from the commencement of the action, as if he or she had been the origin al surety.

A substantial reason may warrant a bond as security for costs:

This Court has held that securi ty should not be required unles s there is a substantial reason for doing so. While a plaintiff’s poverty a lone is not a substantial reason to order sec urity, the assertion of a tenuou s legal theory of liability may constitute a substantial reason. [ Farleigh , 199 Mich App at 634.]-4- “A ‘substantial reason’ for requ iring security may exist where there is a ‘tenuous legal theory of liability,’ or where there is good reason to believe that a par ty’s allegations are ‘groundless and unwarranted.’” In re Surety Bond for Costs , 226 Mich App 321, 331-332; 573 NW2d 300 (1997). “If a party does not fil e a security bond as ordered, a court properly may dismiss that party’s claims.” Id . at 332. “An order to post security for costs can also be app ropriate where there is good reason to believe t hat a party’s allegations, alt hough they cannot be summarily dismissed under MCR 2.116, are nonetheless groundless and unwar ranted.” Wells v Fruehauf Corp , 170 Mich App 326, 335; 428 NW2d 1 (1988).

If the trial court believes that a Rule 109 [MCR 2.109] bond w ould be proper absent plaintiff’s poverty, he must then assess the indi gent plaintiff’s financial ability to post bond. In this regard, the rule attem pts to balance the right of a poor plaintiff to seek justi ce with the need of a defendan t to have an opportunity for security. In our v iew, the rule establishes a strong preference for waiver of the bond where the indi gent plaintiff’s pleadings sho w a “meritorious claim” – i.e. , a legitimate cause of action. In cases where the indigent pl aintiff’s pleadings show a tenuous legal th eory, the plaintiff’s interest in free access to the courts becomes less significant when weighed against the defend ant’s greater need for security. In short, the fulcrum of the rule’s balance is the legitimacy of the indigent plaintiff’s theory of liability.

This is not to say that legitimacy of the claim will always be determinative. The rule clearly allows for sound trial court d iscretion. We can imagine few cases, however, where a discreet trial court will r equire an indigent plaintiff, pleading a valid theory of liability, to post securi ty. [ Gaffier v St Johns Hosp , 68 Mich App 474, 478; 243 NW2d 20 (1976).]

The legal theory alleged is not controlling, but rather, succes s on the merits may be considered:

In determining the legitimacy of a claim, a trial court is not strictly limited to considering the plaintiff’s le gal theory, but may also consi der the likelihood of success on that theory. A trial court’s determinations regardi ng the legitimacy of the claims and a party’s financial ability to post a bond are f indings of fact that are reviewed only for clear error. [ In re Surety Bond for Costs , 226 Mich App at 333 (citations omitted).]

“As with the threshold determinat ion of a reasonable and proper basis for imposition of a requirement of the posting of security, the decision to waive s ecurity under MCR 2.109(B)(1) is a matter addressed to the sound di scretion of the lower court.” Wells , 170 Mich App at 336.

In this case, plaintiff allegedl y suffered injury from the Augu st 2012 automobile accident. However, plaintiff does not dispute the documentary evidence su bmitted by defendants. 2 After

2 In support of his request for appellate relief, plaintiff subm itted his case evaluation summary and a letter advising the trial court that plaintiff’s new coun sel could not appear at the October-5- the August 2012 accident, the medical testing did not reveal th e presence of any new or exacerbation of an existing injury. Further, the evidence esta blished that plaintiff had a history of vehicle or personal injuries and a history of seeking pain m edications. Although plaintiff treated with a pain clinic, he frequently appeared at emergency rooms to obtain additional medications, and when his history and suspected abuse of medica tions were raised, he became hostile and sought other sources or facilities for medications. Plaintiff claimed disability and the need for services from family members for basic needs including dressing and chores, yet plaintiff was able to physically assault his wife. 3 Furthermore, plaintiff’s complaints of pain were inconsistent with his prese ntation at and departure from t he IME. The extensive medical evidence contradicted the meritorious nature and legitimacy of plaintiff’s claims. In re Surety Bond for Costs , 226 Mich App at 333; Gaffier , 68 Mich App at 478. In light of the record, the trial court did not abuse its dis cretion by ordering plaintiff to post a bond for security for costs. Farleigh , 199 Mich App at 633.

Similarly, it cannot be concluded that the trial court’s denial of plaintiff’s motion for reconsideration was an abuse of discretion. Sanders , 303 Mich App at 8-9. Plaintiff attempted to refute the contention that h is claims were groundless and un warranted by submitting an affidavit from Dr. Soo that was not signed or notarized. Irres pective of whether a signed copy was filed, Dr. Soo acknowledged that the condition for which he performed surgery on plaintiff existed in 2011, before the accident in 2012. Nonetheless, he opined that the August 31, 2012 auto accident “ may have exacerbated a pre-existing condition.” However, this con clusory statement did not definitively correlate the accident to an exa cerbation of injury, and the underlying foundation for the opinion was completely lacking in the affidavit. See Rose v Nat’l Auction Group , 466 Mich 453, 470; 646 NW2d 455 (2002) (noting that conclusor y statements without factual support or detail cannot create a factual issue ). Thus, the Dr. Soo affidavit failed to create a factual issue rega rding the merits of plaintiff’s l itigation.

16, 2014 hearing because of a religious holiday. However, thes e documents were not filed in the lower court record, and the exhi bits constitute an inappropriat e expansion of the record on appeal. In re Harper , 302 Mich App 349, 360 n 3; 839 NW2d 44 (2013). Additionally, a signed and notarized affidavit from Dr . Soo was never filed with the t rial court.

3 On appeal, plaintiff contends that this irrelevant and prejudi cial evidence would not be admissible in the trial court. However, plaintiff requested re imbursement for services, and MCL 500.3107(1) allows for expenses for “reasonably necessary produ cts, services, and accommodations for an injured pers on’s care, recovery, or rehab ilitation.”-6- The appropriate remedy for failing to post a security bond as ordered is dismissal. In re Surety Bond for Costs , 226 Mich App at 332. In light of the failure to submit the b ond as ordered, the trial court properl y dismissed plaintiff’s complai nt. 4

Affirmed. Defendants, having pr evailed, may tax costs. MCR 7 .219.

/s/ Amy Ronayne Krause /s/ Michael F. Gadola /s/ Colleen A. O’Brien

4 For the first time on appeal, pl aintiff alleged that the motio n for security for costs was untimely. This argument was not preserved for appellate review because it was never raised in the trial
court. Henderson , 307 Mich App at 7-8. Furthermore, plaintiff acknowledges tha t the language of MCR 2.109 contains no timeliness requirement. Indeed, MCR 2 .109 is to be examined in light of its plain, unambiguous language, Wardell v Hincka , 297 Mich App 127, 132; 822 NW2d 278 (2012), and the rule does not set forth a timeframe for fil ing the motion. Plaintiff’s citation
to Hall v Harmony Hills Recreation, Inc , 186 Mich App 265, 269; 463 NW2d 254 (1990) does not entitle him to appe llate relief. The Hall Court relied on the “as earl y as practicable” language found in Goodenough v Burton , 146 Mich 50, 52; 109 NW 52 (1906). However, that standard from the Goodenough Court pre-dated the court rule and was not incorporated into th e plain language.