-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

AMVENT HOLDINGS, LLC,

Petitioner-Appellant, UNPUBLISHED March 23, 2017

v No. 329699 Tax Tribunal CITY OF SOUTHFIELD, LC No. 2014-001519-TT

Respondent-Appellee.

Before: C AVANAGH , P.J., and S AWYER and S ERVITTO , JJ.

P ER C URIAM

. Petitioner appeals as of right the Michigan Tax Tribunal’s ord er dismissing its case. We affirm.

On May 20, 2014, petitioner filed a petition with the tribunal asserting the following: (1) it solely owned a commercial property located on Telegraph Road in Southfield; (2) respondent levied taxes on the subject prope rty; (3) the 2014 assessed, st ate-equalized, and taxable values imposed on the property, as well as the taxes levied, were inva lid and unlawful; and (4) it requested review of the values in a meeting before the Southfie ld Board of Review, but the Board failed to adjust the values. The petition requested that the tribunal enter an order reducing the 2014 assessed, state-equalized, and taxable values of the p roperty, and requiring respondent to pay any refunds owed, plus interest and costs. In an order entered August 19, 2015, the tribunal granted petitioner’s motion to add tax year 2015 to th e petition.

The tribunal sent a notice of the prehearing conference to bot h parties on August 18, 2015, indicating that the conference had been scheduled for Sep tember 22, 2015. The notice stated, “Failure to appear at or otherwise participate in the p rehearing conference may result in the dismissal of the case or the conducting of default hearing.”

On September 24, 2015, the tribun al entered an order dismissin g petitioner’s case, finding that petitioner failed to appear for the duly-noticed p rehearing conference. Under a section entitled appeal rights, the tribunal cited Michigan Adm in Code R 792.10257, and stated, “If you disagree with the final decision in this case, you may either file a motion with the Tribunal requesting the Tribunal to reconsider the final decisi on (i.e., a motion for reconsideration) or appeal the f inal decision to the Michigan C ourt of Appeals (i.e., a claim of appeal).”-2- Petitioner filed a motion to set aside the order of dismissal and brief in support, pursuant to Rule 792.10231, on October 5, 20 15, asserting that petitione r’s counsel received notice of the prehearing conference, but impr operly entered the matter in his calendar for October 22, 2015. It argued that the order of dismissal should be set aside because, before dismissing its case, the tribunal should have carefully c onsidered less drastic options on the record, and determined that petitioner did not act willfully and had no history of noncompl iance with court orders, and that respondent would not have been pr ejudiced by simply resetting t he prehearing conference.

On October 15, 2015, the tribunal entered an order denying pet itioner’s motion to set aside the order of dismissal, but treating the motion as a moti on for reconsideration. It acknowledged that petitioner’s fa ilure to appear at the confere nce was not willful, but cited MCR 2.119, and reasoned that this “rationale does not demonstrate a palpable error relative to the dismissal that misled the Tribunal and the parties and that wou ld have resulted in a different disposition if the error was corrected.” It stated further: “R ather, the Tribunal did not err in dismissing the case, as dismissal was a warranted sanction unde r TTR 247(9). Even though this section states a petitioner’s failure to appear to the preheari ng conference may result in the dismissal of the case, the Tri bunal’s dismissal was justified.”

Petitioner first argues on app eal that the tribunal erred when it dismissed the petition. We disagree.

“Our review of a decision of the Tax Tribunal is typically lim ited to whether the decision was authorized by law and whether the tribunal’s findings were supported by competent, material, and substantial evidence on the whole record.” Prof Plaza, LLC v Detroit , 250 Mich App 473, 474; 647 NW2d 529 (2002), citing Kostyu v Dep’t of Treasury , 170 Mich App 123, 131; 427 NW2d 566 (1988); see also Const 1963, art 6, § 28. Th is Court reviews “a decision by the Tax Tribunal to dismiss a petition for failure to comply wi th its rules or orders” for an abuse of discretion. Grimm v Dep’t of Treasury , 291 Mich App 140, 149; 810 NW2d 65 (2010), citing Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006). “The abuse-ofdiscretion standard recognizes tha t there will be circumstances in which there will be more than one reasonable and principled out come, and selection of one of these principled outcomes is not an abuse of discretion.” Grimm , 291 Mich App at 149, citing Prof Plaza, LLC , 250 Mich App at 475.

The prehearing conference notice sent to the parties indicated that “[f]ailure to appear at or otherwise participate in the prehearing conference may resul t in the dismissal of the case or the conducting of default hearing.” In its order dismissing th e petition, the tribunal stated that it dismissed petitioner’s case for failure to appear at the duly-n oticed prehearing conference. Finally, in its order denying petitioner’s motion to set aside the dismissal, which it treated as a motion for reconsideration, the tribunal reasoned that “dismiss al was a warranted sanction under TTR 247(9).”

Rule 792.10247 applies specifically to prehearing conferences, and subsection (9) states, “Failure to appear at a duly sc heduled prehearing conference ma y result in the dismissal of the contested case or the scheduling of a default hearing as provid ed in R 792.10231(4).” In turn, Rule 792.10231(4) provides:-3- Failure of a party to properly prosecute the contested case, co mply with these rules, or comply with an order of the tribunal is cause for dis missal of the contested case or the conducting of a default hearing for respo ndent. Upon motion made within 21 days of the entry of the order, an order of dismissal may be set aside by the tribunal for reasons it considers sufficien t.

“The power of the Tax Tribunal to dismiss a petition because of a petitioner’s noncompliance with a rule or order of the Tribunal is unquestionable.” Stevens v Bangor Twp , 150 Mich App 756, 761; 389 NW2d 176 (1986), citing Lawrence v Dep’t of Treasury , 128 Mich App 741; 341 NW2d 200 (1983).

Petitioner does not dispute tha t it received notice of the pre hearing conference, or that the tribunal has the general authority to dismiss cases for a party ’s failure to comply with the tribunal’s rules. Instead, petitioner cites Stevens and Grimm to argue that the tribunal committed error requiring reversal when it failed to consider, on the rec ord, less drastic options for dismissing its case.

In Stevens , the tribunal entered an order dismissing the petitioner’s cas e for failure to appear at an agreed-upon conference. Stevens , 150 Mich App at 759-760. In so doing, the tribunal reasoned that the res pondent had suffered prejudice as a result of the petitioner’s failure to attend. Id . at 760. This Court reversed the dismissal, finding that the tribunal abused its discretion by imposing the sanction of dismissal because the re cord did not support the tribunal’s conclusion that the respondent had actually suffered prejudice. Id . at 761-762.

In Grimm , the tribunal placed a petitioner in default for failing to su bmit a proper proof of service and assessment numbers, and subsequently entered an order of dismissal for failure to cure the default. Grimm , 291 Mich App at 142-144. This Court reversed the dismissal, reasoning that, “[w]hen considering the sanction of dismissal, the record should reflect that the Tax Tribunal ‘gave careful consid eration to the factors involve d and considered all its options in determining what sanction was just and proper in the context of the case before it.’ ” Id . at 149- 150, quoting Bass v Combs , 238 Mich App 16, 26; 604 NW2d 727 (1999), overruled in part o n other grounds by Dimmitt & Owens Fin, Inc v Delo itte & Touche (ISC), LLC , 481 Mich 618, 628; 752 NW2d 37 (2008). Specific fact ors to be considered inc lude:

(1) whether the violation was wilful or accidental; (2) the par ty’s history of refusing to comply with previous court orders; (3) the prejudic e 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 sancti on would better serve the intere sts of justice. [ Id . at 149, quoting Vicencio v Jaime Ramirez, MD, PC , 211 Mich App 501, 507; 536 NW2d 280 (1995).]

Both Stevens and Grimm are distinguishable. In this case, unlike in Stevens , the tribunal did not dismiss petitioner’s appeal based on a finding that res pondent suffered prejudice as a result of petitioner’s failure to attend the prehearing confere nce. Instead, the tribunal simply exercised its authority, pursua nt to Rule 792.10247(9), to dism iss petitioner’s case for failure to appear at the prehearing conference.-4- Further, Grimm involved the tribunal’s use of dismissal as a sanction for fai ling to cure a default. Here, in contrast, the tribunal dismissed petitioner’ s appeal pursuant to Rule 792.10247(9), which specifically applies to prehearing conferen ces and grants the tribunal the authority to either dismiss a case for a petitioner’s failure t o appear, or hold a default hearing. No default was issued. Thus, the tribunal had no obligation to consider less drastic consequences for petitioner’s failure to a ppear, and did not abuse its discr etion by dismissing the case.

Petitioner also argues, on app eal, that the tribunal improperl y evaluated its motion to set aside the dismissal as a motion for reconsideration, and should not have applied MCR 2.119(F). We disagree.

“Our review of a decision of the Tax Tribunal is typically lim ited to whether the decision was authorized by law and whether the tribunal’s findings were supported by competent, material, and substantial evidence on the whole record.” Prof Plaza, LLC , 250 Mich App at 474, citing Kostyu , 170 Mich App at 131; see also Const 1963, art 6, § 28. This Court reviews “a decision by the Tax Tribunal to dismiss a petition for failure to comply with its rules or orders” for an abuse of discretion. Grimm , 291 Mich App at 149, citing Prof Plaza, LLC , 250 Mich App at 475. Actions of the tribunal are subject to the abuse of di scretion standard. Stevens , 150 Mich App at 761. “The abuse-of-discr etion standard r ecognizes that there will be circumstances in which there will be more than one reasonable and principled out come, and selection of one of these principled outcomes is not an abuse of discretion.” Grimm , 291 Mich App at 149, citing Maldonado , 476 Mich at 388.

In its order of dismissal, the tribunal informed petitioner th at if it disagreed with the order, it should either file a motion for reconsideration, or f ile a claim of appeal in this Court. In so doing, it cited Rule 792.10257. Rule 792.10257(1) states, “ The tribunal may order a rehearing or reconsideration of any decisi on or order upon its own initia tive or the motion of any party filed within 21 days of the entr y of the decision or order soug ht to be reheard or reconsidered.” Rather than file a motion for r econsideration, petitioner filed a motion to set aside the order of dismissal pursuant to R 792.10231. Rule 792.10231(4) provides: “Failure of a party to properly prosecute the contested case, comply with these rules, or compl y with an order of the tribunal is cause for dismissal of the contested case or the conducting of a default hearing for respondent. Upon motion made within 21 days of the entry of the order, an o rder of dismissal may be set aside by the tribunal for reasons it cons iders sufficient.”

Treating petitioner’s motion to s et aside the order of dismiss al as a motion for reconsideration, the tribunal de nied the motion, stating: “[E]v en though Petitioner’s failure to appear [at] the prehearing conference was not willful and was d ue to an improper calendaring of the event, this rationale does not demonstrate a palpable error relative to the dismissal that misled the Tribunal and the parties and that would have resulted in a different disposition if the error was corrected. Rather, the Tribunal did not err in dismissing the case, as dismissal was a warranted sanction under TTR 247( 9).” In so doing, it cited MC R 2.119.

Pursuant to MCR 2.119(F)(1), “[u]nless another rule provides a different procedure for reconsideration of a decisio n (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 21 days after entry of an order deciding the m otion.” Further, MCR 2.119(F)( 3) provides:-5- Generally, and without restricti ng the discretion of the court, a motion for rehearing or reconsideration whic h merely presents the same iss ues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the cou rt and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

Petitioner appears to argue tha t, had the tribunal not applied MCR 2.119(F) when evaluating its motion to set aside the order of dismissal, it w ould have granted the motion in light of the caselaw cited in support of the first issue raised on ap peal. We disagree. First, petitioner’s brief in support of the motion to set aside the order of dismis sal made arguments nearly identical to those made in support of the fi rst issue raised in its brief on appeal. Thus, the tribunal considered, and rejected, petitioner’s arguments related to the application of Stevens and Grimm to this case. Despite petitione r’s assertion to the contrary, then, the tribunal would likely still have denied the motion, even had it not applied MCR 2.119(F). Further, as discussed above, the tribunal did not abuse its discre tion when it dismissed the cas e as a result of petitioner’s failure to appear at the prehearing conferen ce, and failed to consider the Grimm factors on the record. Therefore, even assuming, without deciding, that the tribunal s hould not have applied MCR 2.119(F) to petitioner’s motion, it did not abuse its discretio n by denying the motion.

Affirmed.

/s/ Mark J. Cavanagh /s/ David H. Sawyer /s/ Deborah A. Servitto