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STATE OF MICHIGAN 

COURT OF APPEALS 

JOHN KREFT, 

 Plaintiff-Appellant, 

UNPUBLISHED 

September 17, 2015 

v No. 321860 

Alpena Circuit Court 

DR. HEATHER COOK and ALPENA 

SURGICAL ASSOCIATES, PLLC, 

LC No. 12-004679-NH 

 Defendants-Appellees 

and 

ALPENA REGIONAL MEDICAL CENTER, 

 Defendant. 

Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ. 

PER CURIAM. 

 Plaintiff appeals as of right the trial court’s order dismissing plaintiff’s medical 

malpractice action for failure to comply with an earlier court order to pay $750 in costs for a 

discovery violation. We affirm. 

 On April 17, 2012, plaintiff filed a medical malpractice action against defendants, 

alleging a negligently-performed laparoscopic appendectomy in which plaintiff’s appendix was 

purportedly removed by defendant Dr. Heather Cook only to be discovered nearly four months 

later still in place after plaintiff had continued to complain of severe abdominal pain. The merits 

of plaintiff’s lawsuit are not at issue in this appeal. Pursuant to an amended scheduling order 

entered on July 24, 2012, all discovery was to be completed by February 28, 2013. On August 

13, 2012, defendants filed a motion seeking entry of a qualified protective order, authorizing ex 

parte contact and communication with plaintiff’s medical providers relative and limited to 

matters pertinent to plaintiff’s medical malpractice action. Defendants indicated in the motion 

that plaintiff had not responded to repeated efforts to enter into a stipulation regarding the 

authorization issue. On August 31, 2012, a qualified protective order was entered concerning the 

matter pursuant to a stipulation executed by the parties. 

 On September 25, 2012, a stipulated order regarding written discovery was entered. The 

order stated that plaintiff would provide answers on or before October 11, 2012, to multiple sets 
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of interrogatories and document-production requests that had been previously served on plaintiff. 

The order further indicated that plaintiff would provide reasonable dates for his deposition, 

which was to be completed no later than October 31, 2012. In December 2012, defendants filed 

a motion to dismiss pursuant to MCR 2.313(B)(2)(c) (sanctions for failure to comply with 

discovery order), arguing that plaintiff had not submitted answers to the discovery requests that 

were the subject of the stipulated order until October 18, 2012, and that those late answers were 

also incomplete and failed to provide crucial requested information. Defendants additionally 

asserted that plaintiff’s deposition had not yet taken place due to lack of cooperation by 

plaintiff’s counsel. Defendants complained that strenuous repeated efforts to communicate with 

plaintiff’s counsel to address the discovery failures, which violated the stipulated order of 

September 25, 2012, were unsuccessful. Following a hearing on defendants’ motion to dismiss, 

the trial court denied the motion on January 17, 2013, and extended the discovery deadline to 

March 29, 2013.1

 

 On August 12, 2013, defendants filed a motion to strike plaintiff’s expert witnesses and 

his request for damages and to dismiss the case. Defendants maintained that, “[d]espite repeated 

requests, plaintiff refuses to cooperate in providing the necessary discovery.” A hearing on the 

motion was conducted on September 3, 2013, and the trial court took the matter under 

advisement. The record reflects that the trial court also engaged in a telephone conference with 

the parties on September 26, 2013, with respect to defendants’ motion. On November 5, 2013, 

the trial court, while not dismissing the case, entered an order requiring plaintiff to answer all 

written discovery requests that had been served on him by defendants, including a certain set of 

interrogatories and set of document-production requests that dated all the way back to May of 

2013. The order also required plaintiff to execute and return authorizations for particular records 

and to reveal to defendants the name of a physician who had evaluated plaintiff in regard to 

further surgery in 2013. While the order did not expressly state that the answers to defendants’ 

discovery requests were due on a certain date, the order extended discovery “for a period of 90 

days from the date of September 3, 2013,” which would have been December 2, 2013. 

 On February 12, 2014, defendants filed yet another motion to dismiss, the third thus far, 

once again arguing that plaintiff was failing or refusing to provide answers to discovery. 

Defendants contended that “[d]iscovery ha[d] again concluded without Plaintiff providing the 

necessary information and complying with the [trial] [c]ourt’s orders.” In plaintiff’s answer to 

the motion, plaintiff’s counsel, after indicating that there had been compliance with part of the 

trial court’s order, stated: 

 Plaintiff has not answered the Requests to Produce or Interrogatories 

referred [to] in the Order. This was a surprise to Plaintiff’s counsel when he 

received the Defendants’ Motion to Dismiss . . . . While much of the requested 

information has already been supplied, that is no excuse for not answering the 

Requests and Interrogatories. An unsigned copy of the Interrogatories will be 

 

1

 The electronic record of the lower court proceedings does not contain any information 

reflecting the trial court’s reasoning with respect to why it denied defendants’ motion. 
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supplied by the time of the hearing and signed copies will follow shortly 

thereafter. It must be pointed out to the Court that had the slightest inquiry from 

Defense counsel relative to the Interrogatories been relayed to Plaintiff’s counsel, 

the interrogatories would have been answer[ed] earlier. While it is not defense 

counsel’s job to keep track of discovery and order dates for Plaintiff’s counsel, an 

informal request would have led to earlier answers. 

 A hearing was conducted on defendants’ motion on February 18, 2014, at which time 

plaintiff’s counsel conceded that the set of interrogatories and document-production requests at 

issue should have been answered and that “[i]t was our fault” for not doing so. The trial court 

took the matter under advisement. On March 11, 2014, the trial court entered an opinion and 

order with respect to defendants’ third motion to dismiss for discovery violations. The trial court 

ruled as follows: 

 Both parties have filed Affidavits giving their version of the events 

leading up to this motion. It is clear from the Affidavits that the interrogatories 

and requests to produce were sent during the third week of May, 2013. Some 

discovery was supplied incrementally between the due date expressed in the rules 

and February 17, 2014. It is clear that the discovery that was supplied later may 

have deprived Defendants from having a meaningful deposition of Plaintiff in 

January, 2014. It is equally clear that the Plaintiff has not strictly adhered to the 

rule of full, fair, and prompt discovery of certain materials. 

 This Court however is bound to consider lesser sanctions than dismissal as 

the case law requires. This Court finds the failure to permit discovery has not 

prejudiced the Defendants so severely as argued. It is therefore the ORDER of 

this Court that the Plaintiff pay the sum of $750.00 costs to Defendants. This 

Court FURTHER ORDERS that the discovery period shall be reopened for 60 

days from the date of this Order. Failure of Plaintiff to pay the financial sanction 

within 30 days of this Order shall result in a dismissal. [Emphasis added.] 

 Consistent with plaintiff’s pattern of not complying with discovery orders, plaintiff failed 

to pay the $750 within the 30-day period set forth in the order. On April 16, 2014, defendants, 

relying on MCR 2.504(B)(1) (involuntary dismissal for failure to comply with court order), filed 

their fourth motion to dismiss based on plaintiff’s failure to pay the $750 as ordered by the trial 

court. In a response brief, plaintiff argued: 

 April 17, 2014 was the first time that Plaintiff’s counsel saw the Opinion 

and Order [regarding the required $750 payment]. Attached as Exhibit 1 is an 

affidavit by Plaintiff’s counsel attesting to this fact. Further, another affidavit 

from Plaintiff’s counsel’s assistant is attached as Exhibit 2, which states she had 

not seen the Opinion and Order prior to receiving the Motion to Dismiss. 

 As noted, Plaintiff Counsel first learned of the Opinion and Order on April 

16th at Dr. McQuiston’s deposition. The first thing he did the following morning 

was call the Clerk’s office in an attempt to obtain the order. Also, a letter was 

written and faxed to this Court explaining the situation . . . . This was done before 
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Plaintiff’s counsel found out that the Motion to Dismiss had been filed. Upon 

finding out that the Motion had been filed, the Plaintiff drafted, filed and served 

the present Response. Additionally, the Plaintiff immediately, on April 17, 

overnighted a check to the Defendants for $750.00. 

 Plaintiff’s counsel would not jeopardize this lawsuit by intentionally 

ignoring this Court’s Order. Further, despite an extensive search in Plaintiff’s 

scanned documents and a thorough review of the hardcopy backup therefore, the 

Opinion and Order could not be found. Once such an order had been received the 

payment would have immediately been made. This is exactly what was done once 

Plaintiff was made aware of the Order. As such, this meritorious case should not 

be dismissed. 

 This was the full extent of plaintiff’s answer to defendants’ motion to dismiss. Plaintiff 

did not argue any law concerning factors to consider before imposing the sanction of dismissal, 

such as lack of prejudice. 

 On April 21, 2014, a hearing was held on defendants’ fourth motion to dismiss. From the 

remarks made by the trial court at the hearing, it was extremely evident that the court did not 

believe plaintiff’s counsel’s claim that his office never received the order containing the 

requirement to pay defendants $750 within 30 days for the discovery violations. When 

plaintiff’s counsel stated his belief that his office had not received the order, the trial court 

responded, “Well, I believe you did[.]”2

 The trial court also noted, “You know, I think you’d be 

the first party to show up in this court in my five years on the bench that indicated that it didn’t 

get something from this court.” The following colloquy then took place at the hearing between 

the trial court and plaintiff’s counsel: 

Counsel. I was mortified when I found out there was an order from 

 this Court that had told us to do something we didn’t do . . . 

 . It’s a high priority thing. 

Court. Well, the order to compel [discovery]. How mortified were 

 you then? 

Counsel. Yeah, well, that’s what I mean. Yeah, I know. 

Court. That the interrogatories went out in June [actually May] – 

Counsel. On top of this, yeah. 

Court. – and you didn’t answer the bell in October. 

 

2

 Plaintiff’s counsel conceded that he had received a status conference notice sent by the trial 

court on March 11, 2014 – the same day that the order at issue was entered; defendants received 

the court’s order. 
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 Plaintiff did not argue lack of prejudice or any other reason as a basis to reject dismissal 

of the action, aside from the claim that the order had never been received. The trial court took 

defendants’ motion under advisement. 

 On May 1, 2014, the trial court entered an opinion and order granting defendants’ motion 

to dismiss under MCR 2.504(B)(1). The trial court recited the applicable caselaw regarding 

sanctions and factors to consider in determining whether dismissal of an action is warranted. 

The trial court then found that plaintiff “ha[d] not offered good cause for failing to pay the costs 

timely” and that the failure to pay “constitute[d] a willful violation.” The trial court next 

observed that plaintiff’s “failure to comply with previous court orders ha[d] significantly 

prejudiced the Defendants.” The trial court detailed the history of plaintiff’s failures to comply 

with discovery requests and related orders compelling discovery, dating back to 2012, as well as 

the multiple motions to dismiss filed by defendants as forced by plaintiff’s failures. The trial 

court concluded that a lesser sanction “would not serve the interests of justice,” especially given 

that a lesser sanction had previously been imposed. The trial court acknowledged that dismissal 

is a drastic sanction that should be imposed cautiously, but it found that dismissal here was “just 

and proper” under the circumstances presented. Plaintiff appeals as of right. 

 On appeal, plaintiff argues that the affidavits submitted below by plaintiff’s counsel and 

counsel’s administrative assistant established that the trial court’s order regarding the $750 

discovery penalty had never been received and that the court abused its discretion in failing to 

consider the affidavits. Plaintiff also contends that there is no support for the trial court’s 

conclusion that the failure to timely pay the $750 constituted a willful violation. Plaintiff further 

maintains that the trial court did not address the issue of prejudice, that there was no prejudice 

under the circumstances, that the court failed to consider that plaintiff’s counsel attempted to and 

indeed cured the defect by paying the $750, and that, instead of dismissing the action, the court 

should have contemplated imposing a sanction solely against plaintiff’s counsel in order to better 

serve the interests of justice. 

 “A trial court’s dismissal of a case for failure to comply with the court’s orders is . . . 

reviewed for an abuse of discretion.” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 

NW2d 809 (2006). “An abuse of discretion occurs when the decision results in an outcome 

falling outside the principled range of outcomes. Woodard v Custer, 476 Mich 545, 557; 719 

NW2d 842 (2006). 

 MCR 2.504(B)(1) provides that “[i]f a party fails to comply with . . . a court order, upon 

motion by an opposing party, or sua sponte, the court may enter a . . . dismissal of the 

noncomplying party’s action or claims.” “Dismissal is a drastic step that should be taken 

cautiously.” Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). Prior to 

imposing the sanction of dismissal, the trial court must carefully evaluate all available options 

and “conclude that the sanction of dismissal is just and proper.” Id. In Woods v SLB Prop Mgt, 

LLC, 277 Mich App 622, 631; 750 NW2d 228 (2008), this Court stated that the following factors 

are to be considered when considering the sanction of dismissal under MCR 2.504(B)(1): 

 “(1) whether the violation was willful or accidental; (2) the party’s history 

of refusing to comply with previous court orders; (3) the prejudice to the opposing 

party; (4) whether there exists a history of deliberate delay; (5) the degree of 
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compliance with other parts of the court’s orders; (6) attempts to cure the defect; 

and (7) whether a lesser sanction would better serve the interests of justice.” 

[Citation omitted.3

] 

 We initially question the strict application of the dismissal-sanction factors to the case at 

bar, considering that the order that was violated specifically and unequivocally provided that the 

case would be dismissed if the $750 payment was not made within 30 days. This was not a case 

where a party simply failed to comply with a general court order that made no mention of the 

possibility of dismissal as a sanction for noncompliance. In Mink v Masters, 204 Mich App 242, 

244-245; 514 NW2d 235 (1994), this Court acknowledged the dismissal-sanction factors and the 

principle that dismissal or default is a drastic measure, but the panel then ruled, absent analysis 

of the factors, as follows: 

 Under the facts of this case, we are not persuaded that the trial court 

abused its discretion in granting a default judgment as a sanction for failure to 

comply with discovery. Defendants were afforded a number of opportunities to 

comply with the discovery request and failed to do so and had even been warned 

that a failure to comply with the discovery request would result in a default 

judgment, yet they still chose not to comply with the discovery request. Under 

these facts, it was within the trial court's discretion to grant a default judgment for 

defendants' blatant refusal to comply with the discovery request and the court 

orders compelling compliance. [Emphasis added.] 

 Further, with respect to the dismissal-sanction factors, while plaintiff’s argument below 

necessarily spoke to the issues of willfulness and curing the defect, plaintiff did not cite, analyze, 

or discuss the governing caselaw or authorities regarding the factors, nor did plaintiff make any 

claims concerning prejudice, the imposition of lesser sanctions, the history of delays, and 

compliance with previous orders. “Issues raised for the first time on appeal are not ordinarily 

subject to review.” Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 

507 NW2d 422 (1993); see also Green v Ziegelman, 282 Mich App 292, 300-301; 767 NW2d 

660 (2009) (“An issue is not properly preserved for appeal if not raised in the circuit court, and 

we need not address arguments first raised on appeal.”). Accordingly, we need not consider 

plaintiff’s arguments concerning such matters as prejudice and whether lesser sanctions would 

have better served the interests of justice. Moreover, assuming proper preservation, reversal is 

not warranted in regard to the dismissal-sanction factors as explained below. 

 The thrust of plaintiff’s argument in the trial court and on appeal is that the order was 

never received by plaintiff’s counsel, as conclusively evidenced by counsel’s affidavit and the 

affidavit of his administrative assistant; therefore, there was no willful violation of the order. 

First, willfulness is but one of the dismissal-sanction factors. And more importantly, the trial 

 

3

 This list of factors is not to be considered exhaustive. Vicencio, 211 Mich App at 507. 

Hereafter, we shall refer to the factors as the “dismissal-sanction factors.” 
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court was free to disbelieve plaintiff’s affidavits and assertions. See In re Parole of Haeger, 294 

Mich App 549, 579; 813 NW2d 313 (2011) (“[T]here is no abuse of discretion when a court or a 

fact-finder faced with conflicting information makes a reasonable and principled decision 

regarding which side to believe.”). Plaintiff’s counsel had received a notice delivered by the 

court regarding another matter that was dated the same day as the order at issue, and counsel 

admitted at the hearing on the final motion to dismiss that the court had counsel’s correct 

address. Further, defendants received the order and were fully aware of the court’s ruling. There 

is no indication in the record that any other papers served on the parties by the court during the 

litigation had not been received by plaintiff. Additionally, it is clear that the trial court did not 

place any trust in counsel’s claims given the past pattern of conduct in failing to comply with 

discovery deadlines and orders. The motion that resulted in dismissal was the fourth motion 

filed by defendants seeking dismissal for discovery violations and noncompliance with court 

orders. Plaintiff’s counsel’s partial excuse that he would have complied with one of the court’s 

discovery orders had defense counsel inquired about answers to interrogatories and documentproduction requests is nonsensical, as was counsel’s indication that it was a “surprise” to him 

that discovery requests had not been answered. At one of the hearings, plaintiff’s counsel argued 

that he had orally provided some requested discovery information to defense counsel, as if that 

would suffice, but he then agreed with the trial court that defendants were entitled to formal 

answers. On this record, we are not prepared to reverse the trial court’s rejection of plaintiff’s 

excuses for not timely paying the $750, nor the court’s conclusion that the violation was willful, 

which conclusion could reasonably be inferred in light of all the surrounding circumstances. 

Plaintiff’s argument that it defies logic and make no sense for plaintiff’s counsel not to have 

timely paid the $750 had the order truly been received carries no weight with us, just as it left the 

trial court unconvinced of plaintiff’s claims; the failure to comply with discovery requests and 

other court orders was also illogical. 

 With respect to the issue of prejudice, the late payment of the $750, if viewed in a 

vacuum, was not prejudicial, but the trial court plainly expressed that it was the accumulation of 

previous discovery violations over a significant period of time on top of the latest violation that 

ultimately resulted in prejudice. And plaintiff makes no effort on appeal to dispute that 

reasoning or logic. With respect to whether lesser sanctions would have better served the 

interests of justice, we find guidance from and quite fitting the following holding by this Court in 

Bass v Combs, 238 Mich App 16, 35-36; 604 NW2d 727 (1999), overruled in part on other 

grounds in Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618; 752 

NW2d 37 (2008): 

 We do not accept plaintiff's suggestion that the trial court could not resort 

to the severe sanction of dismissal without first having imposed a “trail of lesser 

sanctions.” Judge Howard's extended tolerance of plaintiff's inadequate discovery 

responses did not deprive him of the authority . . . to eventually determine that 

plaintiff's disregard of her discovery obligations over the course of more than one 

year at last warranted the ultimate sanction of dismissal. In light of plaintiff's 

repeated discovery failures, we find no abuse of discretion by Judge Howard in 

reaching the decision that the dismissal of plaintiff's case best served the interests 

of justice. [Citations omitted.] 
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Such reasoning is equally applicable under the comparable circumstances presented here. 

The history of plaintiff’s failures to comply with discovery obligations and orders, including 

plaintiff’s counsel’s self-acknowledged shortcomings, support the trial court’s ruling. In sum, 

the trial court did not abuse its discretion in granting defendants’ motion to dismiss plaintiff’s 

medical malpractice action under MCR 2.504(B)(1).4

 Affirmed. Having fully prevailed on appeal, defendants are awarded taxable costs under 

MCR 7.219. 

/s/ Mark T. Boonstra 

/s/ William B. Murphy 

/s/ Jane E. Markey 

 

4

 We note that plaintiff’s lawsuit would have likewise been properly dismissed under MCR 

2.313(B)(2)(c), which pertains more specifically to violations of court orders in the context of 

discovery, as opposed to court orders in general, which is covered by MCR 2.504.