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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Plaintiff-Appellant, UNPUBLISHED September 17, 2015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: B OONSTRA , P.J., and M URPHY and M ARKEY , JJ.

P ER C URIAM

.

Plaintiff appeals as of right t he trial court’s order dismissi ng 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 f iled a medical malpractice actio n against defendants, alleging a negligently-performed laparoscopic appendectomy in w hich plaintiff’s appendix was purportedly removed by defendant Dr. Heather Cook only to be di scovered 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. Pursua nt 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 qualifie d protective order, authorizing ex parte contact and communication with plaintiff’s medical provid ers relative and limited to matters pertinent to plaintiff’s medical malpractice action. D efendants indicated in the motion that plaintiff had not responded to repeated efforts to enter i nto a stipulation regarding the authorization issue. On Augus t 31, 2012, a qualified protectiv e order was entere d concerning the matter pursuant to a stipulat ion executed by the parties.

On September 25, 2012, a stipulated order regarding written di scovery was entered. The order stated that plaintiff woul d provide answers on or before October 11, 2012, to multiple sets-2- of interrogatories and document-production requests that had be en previously served on plaintiff.
The order further indicated that plaintiff would provide reason able dates for his deposition, which was to be completed no later than October 31, 2012. In D ecember 2012, defendants filed a motion to dismiss pursuant to MCR 2.313(B)(2)(c) (sanctions f or failure to comply with discovery order), arguing that plaintiff had not submitted answ ers 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 pr ovide crucial requested informa tion. Defendants additionally asserted that plaintiff’s deposition had not yet taken place du e to lack of cooperation by plaintiff’s counsel. Defendants complained that strenuous repe ated efforts to communicate with plaintiff’s counsel to address the discovery failures, which vi olated 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 exte nded the discover y deadline to March 29, 2013. 1

On August 12, 2013, defendants filed a motion to strike plaint iff’s expert witnesses and his request for damages and to dismiss the case. Defendants ma intained that, “[d]espite repeated requests, plaintiff refuses to cooperate in providing the neces sary 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 enga ged 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 orde r requiring plaintiff to answer all written discovery requests that had been served on him by defen dants, including a certain set of interrogatories and set of document-production requests that da ted 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 eva luated plaintiff in regard to further surgery in 2013. While t he order did not expressly sta te that the answers to defendants’ discovery requests were due on a certain date, the order extend ed 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 d ismiss, the third thus far, once again arguing that plaintiff was failing or refusing to pr ovide answers to discovery. Defendants contended that “[d]i scovery ha[d] again concluded wi thout 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 ha d been compliance with part of the trial court’s order, stated:

Plaintiff has not answered the Requests to Produce or Interrog atories referred [to] in the Order. This was a surprise to Plaintiff’s counsel when he
received the Defendants’ Motion to Dismiss . . . . While much o f the requested information has already been supplied, that is no excuse for no t answering the Requests and Interrogatories. An unsigned copy of the Interroga tories will be

1 The electronic record of the lower court proceedings does not contain any information reflecting the trial court’s reas oning with respect to why it d enied defendants’ motion.-3- supplied by the time of the hearing and signed copies will foll ow shortly thereafter. It must be pointed o ut to the Court that had the sl ightest inquiry from
Defense counsel relative to the I nterrogatories been relayed to Plaintiff’s counsel, the interrogatories would have been answer[ed] earlier. While i t is not defense counsel’s job to keep track of discovery and order dates for Pl aintiff’s counsel, an informal request would have led to earlier answers.

A hearing was conducted on defe ndants’ motion on February 18, 2014, at which time plaintiff’s counsel conceded that the set of interrogatories an d document-production requests at issue should have been answered and that “[i]t was our fault” f or 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 d iscovery 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 expre ssed 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 s trictly adhered to the rule of full, fair, and prompt di scovery of certa in materials.

This Court however is bound to c onsider lesser sanctions than dismissal as the case law requires. This Court finds the failure to permit d iscovery has not prejudiced the Defendants so sev erely as argued. It is therefor e the ORDER of this Court that the Plaintiff pay the sum of $750.00 costs to D efendants. This
Court FURTHER ORDERS that the di scovery period shall be reopene d 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 disc overy 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) (involunt ary dismissal for failure t o 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 br ief, plaintiff argued:

April 17, 2014 was the first time that Plaintiff’s counsel saw the Opinion and Order [regarding the require d $750 payment]. Attached as Ex hibit 1 is an affidavit by Plaintiff’s counsel attesting to this fact. Furthe r, another affidavit from Plaintiff’s counsel’s assistant is attached as Exhibit 2, which states she had not seen the Opinion and Order pr ior to receivi ng the Motion to Dismiss.

As noted, Plaintiff C ounsel first learned of the Opinion and O rder on April

16 th at Dr. McQuiston’s deposition. The first thing he did the foll owing 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-4- Plaintiff’s counsel found out that the Motion to Dismiss had be en filed. Upon finding out that the Motion had been filed, the Plaintiff draft ed, 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 inten tionally ignoring this Court’s Order. Further, despite an extensive sear ch 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 be en 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 meritoriou s 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 imp osing the sanction of dismissal, such as lack of prejudice.

On April 21, 2014, a hear ing was held on de fendants’ fourth mo tion to dismiss. From the remarks made by the trial court at the hearing, it was extremel y evident that the court did not believe plaintiff’s counsel’s claim that his office never recei ved the order containing the requirement to pay defendants $750 within 30 days for the disco very violations. When plaintiff’s counsel stated his be lief that his office had not r eceived 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 th e bench that indicated that it didn’t get something from this court.” The following colloquy then to ok 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 [d iscovery]. How m ortified were you then?

Counsel . Yeah, well, that’s wh at I mean. Yeah, I know.

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

Counsel . On top of this, yeah.

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

2 Plaintiff’s counsel conceded that he had received a status con ference 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.-5- 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 be en received. The trial court took
defendants’ motion under advisement.

On May 1, 2014, the trial court entered an opinion and order g ranting defendants’ motion to dismiss under MCR 2.504(B)(1). T he trial court recited the applicable caselaw regarding sanctions and factors to consider in determining whether dismis sal of an action is warranted. The trial court then found that p laintiff “ha[d] not offered go od cause for failing to pay the costs timely” and that the failure to pay “constitute[d] a willful vi olation.” The trial court next observed that plaintiff’s “failure to comply with previous cour t orders ha[d] significantly prejudiced the Defendants.” The trial court detailed the histo ry of plaintiff’s failures to comply with discovery requests and rela ted orders compelling discovery , dating back to 2012, as well as the multiple motions to dismiss filed by defendants as forced b y plaintiff’s failures. The trial
court concluded that a lesser sa nction “would not serve the int erests 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 circumstan ces presented. Plaintiff appea ls as of right.

On appeal, plaintiff argues that the affidavits submitted belo w by plaintiff’s counsel and
counsel’s administrative assistant established that the trial c ourt’s order regarding the $750 discovery penalty had never been received and that the court ab used 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 pre judice, 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 payi ng the $750, and that, instead o f dismissing the action, the court should have contemplated imposing a sanction solely against pla intiff’s counsel in order to better
serve the intere sts of justice.

“A trial court’s dismissal of a case for failure to comp ly 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 decis ion 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 wi th . . . 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 drasti c step that should be taken cautiously.” Vicencio v Ramirez , 211 Mich App 501, 506; 536 NW2d 280 (1995). Prior to imposing the sanction of dismissa l, the trial court must carefu lly 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 consid ering 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 previ ous court orders; (3) the preju dice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of-6- 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.” [Citation omitted. 3 ]

We initially question the strict application of the dismissal- sanction factors to the case at bar, considering that the order t hat 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 orde r 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 dismi ssal-sanction factors and the principle that dismissal or default is a drastic measure, but t he panel then ruled, absent analysis of the factors, as follows:

Under the facts of this case, we are not persuaded that the tr ial court abused its discretion in granting a default judgment as a sanct ion for failure to comply with discovery. Defendants were afforded a number of opp ortunities to comply with the discovery request and failed to do so and had even been warned that a failure to comply with the disc overy 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 gran t a default judgment for defendants' blatant refusal to comply with the discovery reques t and the court orders compelling compliance. [Emphasis added.]

Further, with respect to the di smissal-sanction factors, while plaintiff’s argument below necessarily spoke to the issues of willfulness and curing the d efect, plaintiff did not cite, analyze, or discuss the governing caselaw o r authorities regarding the f actors, 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 preser ved for appeal if not raised i n the circuit court, and we need not address arguments first raised on appeal.”). Accor dingly, 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, assumin g proper preservation, reversal is not warranted in regard to the dism issal-sanction factors as ex plained below.

The thrust of plaintiff’s argument in the trial court and on a ppeal is that the order was never received by plaintiff’s c ounsel, as conclusively evidence d 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-sanc tion factors.”-7- court was free to disbelieve plai ntiff’s affidavits and asserti ons. 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 reasonab le and principled decision regarding which side to believe.” ). Plaintiff’s counsel had re ceived a notice delivered by the court regarding another matter that was dated the same day as t he 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 r eceived the order and were fully aware of the cour t’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, i t is clear that the trial court did not place any trust in couns el’s claims given th e past pattern of c onduct in failing to comply with discovery deadlines and orders. The motion that resulted in di smissal 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 hav e 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 b een answered. At one of the h earings, plaintiff’ s counsel argued that he had orally provided some requested discovery informatio n to defense counsel, as if that would suffice, but he then agreed with the trial court that def endants were entitled to formal answers. On this record, we are not prepared to reverse the tr ial court’s rejection of plaintiff’s excuses for not timely paying the $750, nor the court’s conclus ion that the violation was willful, which conclusion could reasonably be inferred in light of all t he surrounding circumstances. Plaintiff’s argument that it defi es logic and make no sense for plaintiff’s counsel not to have timely paid the $750 had the orde r truly been rec eived carries no weight with us, just as it left the trial court unconvinced of plaintiff’s claims; the failure to c omply with discovery requests and other court orders was also illogical.

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

vacuum , was not prejudicial, but the tr ial court plainly expressed th at it was the accumulation of previous discovery violations o ver a significant period of time on top of the latest violation that ultimately resulted in prejudice. And plaintiff makes no effor t on appeal to dispute that reasoning or logic. With respect to whether lesser sanctions w ould have better served the interests of justice, we find guidance from and quite fitting t he following holding by this Court in

Bass v Combs , 238 Mich App 16, 35-36; 604 NW2d 727 (1999), overruled in par t 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 c ould not resort to the severe sanction of dismissal without first having impose d a “trail of lesser sanctions.” Judge Howard's extended tolerance of plaintiff's in adequate discovery responses did not deprive him of the authority . . . to eventua lly determine that plaintiff's disregard of her dis covery obligations over the cou rse of more than one year at last warranted the ultimate sanction of dismissal. In l ight 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 be st served the interests of justice. [Citations omitted.]-8- Such reasoning is equally applicable under the comparable circu mstances presented here. The history of plaintiff’s failures to comply with discovery ob ligations and orders, including plaintiff’s counsel’s self-acknow ledged shortcomings, support t he trial court’s ruling. In sum, the trial court did not abuse its discretion in granting defend ants’ motion to dismiss plaintiff’s medical malpractice action under MCR 2.504(B)(1). 4

Affirmed. Having fully prevailed on appeal, defendants are aw arded 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 prop erly 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 or ders in general, which is cove red by MCR 2.504.