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STATE OF MICHIGAN 

COURT OF APPEALS 

JAMES H. HELD and NICHOLE HELD, 

 Plaintiffs-Appellants, 

UNPUBLISHED 

May 26, 2015 

v No. 320072 

Oakland Circuit Court 

GUSOLINE ALLEY, INC., d/b/a GUSOLINE 

ALLEY, 

LC No. 2013-132791-NO 

 Defendant-Appellee. 

Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ. 

PER CURIAM. 

 Plaintiffs appeal as of right an order denying their motion for relief from judgment. The 

trial court had earlier granted plaintiffs’ motion for voluntary dismissal without prejudice, MCR 

2.504(A), with respect to plaintiffs’ premises liability action against defendant. But the dismissal 

ruling had also provided that any future suit filed by plaintiffs against defendant would be 

subject to a previous court decision striking plaintiffs’ witness and exhibit lists that were not 

timely filed under the court’s scheduling order. We reverse and remand for further proceedings. 

 Plaintiff James Held alleged that on January 26, 2013, he suffered an injury when he 

slipped and fell on a thin sheet of ice when exiting defendant’s bar. Held and his wife Nichole 

Held, as plaintiffs, filed their suit against defendant in the Oakland Circuit Court on March 13, 

2013. Plaintiffs were represented by an attorney, and counsel e-filed the complaint. At the time 

of this e-filing, counsel failed to register his e-mail address with the trial court as a “service 

contact.”1

 In an affidavit filed by plaintiffs’ counsel later in the suit, he averred: 

 

1

 Pursuant to § 6(a) (“Service”) of Administrative Order No. 2007-3, 494 Mich lix (2013) 

(extending AO 2007-3 through June 30, 2015, with respect to Oakland Circuit Court’s e-filing 

pilot project): 

 All parties shall register with the court and opposing parties one e-mail 

address with the functionality required for the pilot program, through Tyler 

Odyssey File and Serve. All service shall originate from this registered e-mail 

address. 
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 On March 13, 2013, Plaintiffs’ counsel e-filed this case with [the] Oakland 

County Circuit Court. This e-filing was accepted by . . . [the court]. Unbeknownst 

to Plaintiffs’ counsel, when the case was e-filed, Plaintiffs’ counsel’s e-filer did 

not click on the correct button, and Plaintiffs’ counsel was not “attached” to the 

case as an official “service contact.” No one from [the] Oakland County Circuit 

Court contacted me to advise me of this fact. I did not discover until December 

26, 2013[,] that I was not added as a service contact on this case. 

 Defendant e-filed its answer to the complaint on April 8, 2013. Plaintiffs’ counsel 

indicated in his affidavit that he was able to open and view documents e-filed by defendant in the 

case because, as explained to plaintiffs’ counsel by court personnel, “[d]efendant had been 

manually adding [counsel] as a service contact.”2

 On May 28, 2013, the trial court prepared, issued, and e-filed a scheduling order in which 

it directed, in part, that the parties exchange and file witness and exhibit lists no later than 

August 30, 2013.3

 The scheduling order also provided that discovery was to be completed by 

September 24, 2013, that dispositive motions were to be filed by October 18, 2013, that case 

evaluation was to take place in October 2013, and that the case had a trial date of February 6, 

2014. Plaintiffs’ attorney averred in his affidavit that he was not served with the scheduling 

order at the time, given that he was not listed as a “service contact” with the court. He further 

asserted that he was never served, by e-mail or otherwise, with the scheduling order. Plaintiffs’ 

counsel claimed that, in light of the fact that he did not receive the scheduling order, he was 

unaware of the filing deadlines, including the one for the witness and exhibit lists. 

 On August 30, 2013, in compliance with the scheduling order, defendant filed and served 

its witness and exhibit lists; plaintiffs did not and were thus in violation of the scheduling order. 

On September 20, 2013, defendant e-filed a motion to extend the dates previously set in the 

scheduling order for discovery, case evaluation, and trial, noting that defense counsel was in the 

process of transferring the case to a new attorney. Considering the affidavit executed by 

plaintiffs’ counsel, and according to a proof of service, defendant’s motion was served on 

plaintiffs’ counsel by e-mail. Defendant e-filed a notice of hearing with respect to its motion, 

with the motion being scheduled for hearing on October 2, 2013, and the notice was served on 

plaintiffs’ counsel by e-mail. Before that hearing, on September 27, 2013, a stipulation and 

order for substitution of defense counsel was e-filed and entered (stipulation was between prior 

As implemented under the authority of AO 2007-3, policy rules of the Oakland Circuit Court 

warn litigants that judges issue opinions and orders electronically, that all “[a]ll filers must 

register as a Service Contact through Odyssey File and Serve,” and that “[i]f you fail to register, 

you will not receive copies of orders issued by the Court.” Oakland Circuit Court, Notice of 

Mandatory E-Filing (emphasis in original). 

 

2

 Plaintiffs’ attorney averred, “I received documents e-filed by defense counsel on this case[.]” 

3

 There was no scheduling or pretrial conference that precipitated entry of the scheduling order, 

nor was such a conference required. MCR 2.401(B)(2). 
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and new defense counsel). The stipulated order indicated that “[a]ll dates in the scheduling order 

shall remain in effect.” There is no proof of service in the record regarding the stipulation and 

order, and it is simply unclear whether plaintiffs’ counsel ever observed the stipulation and order. 

 On October 2, 2013, a hearing was apparently held on defendant’s motion to extend the 

dates for discovery, case evaluation, and trial.4 The trial court entered an order extending two 

dates, changing the case evaluation date to November 29, 2013, and moving the discovery cutoff date to November 29 to coincide with the case evaluation date; the trial court left the existing 

trial date in place. According to the affidavit of plaintiffs’ attorney, and as conveyed to him by 

court personnel, on October 16, 2013, counsel was officially added as a “service contact” on the 

case for purposes of the court’s e-filing system, although counsel himself did not become aware 

of this fact until December 26, 2013. On October 17, 2013, the court received for filing 

plaintiffs’ witness list, but no exhibit list was forthcoming.5

 Plaintiffs’ counsel averred in his 

affidavit that he “did not know the witness list was tardy” and that he “simply did not know 

about the witness deadline because he never saw the scheduling order.” (Emphasis in 

original.) 

 On November 13, 2013, defendant filed a motion for leave to file a dispositive motion, as 

the deadline for dispositive motions set forth in the scheduling order had elapsed. Defendant 

claimed that plaintiffs’ depositions had been conducted prior to the new discovery deadline and 

that the depositions provided defendant with “a strong factual basis upon which to file a 

dispositive motion.” In response to defendant’s motion, plaintiffs admitted that defendant had 

previously filed a motion to extend dates, which we again note was heard by the trial court on 

October 2, 2013, and that the court had “wisely declined to postpone the 10/18/13 dispositive 

motion deadline.”6 The trial court denied defendant’s motion at a hearing on November 20, 

2013. Plaintiffs had not yet filed an exhibit list. On November 21, 2013, defendant filed a 

motion to strike plaintiffs’ witness list and any exhibit list should plaintiffs ever file one. The 

basis for the motion was noncompliance with the deadlines in the scheduling order. In plaintiffs’ 

response to the motion, plaintiffs’ counsel indicated that he had never seen the scheduling order 

and thus did not know about the deadlines. As gleaned from the affidavit of plaintiffs’ counsel, 

he had not yet discovered the glitch concerning the “service contact” failure. Plaintiffs also 

 

4

 There is no transcript of a hearing contained in the record, but the resulting order on 

defendant’s motion suggests that a hearing was indeed conducted. 

5

 Although the record is not entirely clear on the matter, we surmise that in e-filing plaintiffs’ 

witness list, plaintiffs’ counsel, without realizing it, registered his firm as a “service contact” 

with respect to the case. A proof of service prepared by counsel himself provided, “I hereby 

certify that on today’s date, October 16, 2013, I electronically filed the foregoing paper [witness 

list] with the Clerk of the Court using the electronic filing system, which will send notification of 

such filing.” This would explain why on October 16, 2013, plaintiffs’ counsel’s e-mail address 

became registered as a service contact in the case. We note that the witness list was not 

technically received by the court for filing until October 17, 2013. 

6

 This is the deadline for dispositive motions set forth in the scheduling order. 
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argued that every witness on plaintiffs’ witness list appeared on defendant’s witness list, that all 

of plaintiffs’ witnesses, except for one, had been identified by plaintiffs in answers to 

interrogatories back in April 2013, and that defendant, given these circumstances, was not 

surprised or unfairly prejudiced by the late filing. Plaintiffs pointed out that defendant and 

plaintiffs, without objection, had conducted numerous depositions of witnesses, including 

depositions of both plaintiffs, who were on the “tardy” witness list and after expiration of the 

deadline. 

 A hearing on defendant’s motion to strike was held on December 4, 2013. Late in the 

day on December 3, 2013, plaintiffs’ counsel submitted an exhibit list, which was not received 

for filing by the court until December 4, 2013. At the hearing, when plaintiffs’ counsel argued 

that there was no surprise or prejudice given the interrogatory answers and the names already 

identified on defendant’s witness list, the trial court remarked, “That’s not the standard.” The 

trial court was especially angered by the last minute filing of the exhibit list before the hearing, 

stating that it reflected counsel’s awareness of the failure to comply with the scheduling order, 

reflected that the untimely filing of the witness list was not an isolated incident, and reflected “a 

pattern.” The trial court granted the motion and struck both the witness and exhibit lists. 

 On December 11, 2013, plaintiffs filed a motion for voluntary dismissal without 

prejudice under MCR 2.504(A). A hearing on the motion was held on December 18, 2013. At 

the hearing, the trial court ruled from the bench as follows: 

 This motion now to dismiss voluntarily comes on the heels of the Court’s 

previous ruling. I grant the motion to dismiss; however, any and all orders that 

this Court entered in the current case will attach to any future filed case by the 

Plaintiff[s], inclusive of the Court’s granting of the motion to strike the witness 

and exhibit lists, because I’m satisfied that this motion to dismiss is an effort to 

circumvent the Court’s ruling as it relates to striking the witness and exhibit lists, 

and I will not allow the Plaintiff[s] to do so. So the motion is granted, with the 

condition attached that any future pleading or complaint filed, this Court’s 

previous orders follow any new filing. 

 The record does not show that the trial court’s ruling was reduced to a written order, and 

on December 31, 2013, plaintiffs filed a motion under MCR 2.612 for relief from judgment as to 

the trial court’s ruling. The motion, which attached the affidavit of plaintiffs’ counsel that we 

have referred to throughout this opinion, focused on the e-filing issue and the claimed 

inadvertent failure to register counsel’s e-mail address as a service contact. Plaintiffs also 

attached various computer-generated “service details” in regard to the case and the court’s efiling system. These service details indicated that two employees of the law firm representing 

defendant at the time, one of whom was defense counsel, had opened the May 2013 e-filed 

scheduling order, but not plaintiffs’ counsel. In the affidavit of plaintiffs’ counsel, he averred 

that the court’s e-filer, who was responsible for the e-filing and e-service of the scheduling order 

as reflected in the service details, informed counsel “that she had not served [counsel] with the 

scheduling order” because he was not registered as a service contact at the time. Citing MCR 

2.612(C)(1)(a) (“Mistake, inadvertence, surprise, or excusable neglect”), and claiming a lack of 

prejudice, plaintiffs asked the trial court to set aside its earlier ruling striking the witness and 
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exhibit lists, as well as the previous ruling dismissing the lawsuit with the attachment of 

conditions to any new action. 

 On January 8, 2014, the trial court held a hearing on plaintiffs’ motion for relief from 

judgment. The trial court admonished plaintiffs’ counsel, as an attorney who practiced in the 

Oakland County Circuit Court, for failing to comply with the e-filing registration requirement, 

noting that filers are warned that they will not receive copies of court orders if they fail to 

register their e-mail address as a service contact. The trial court indicated that “[n]either the 

Court nor the county clerk provide[s] free copies of opinions, orders, or other electronically filed 

documents to an attorney or party who fails to properly register with the Odyssey File & Serve 

application.” The trial court proceeded to question plaintiffs’ counsel in regard to the computergenerated service details, which indicated that numerous filings had been e-mailed to and opened 

by counsel’s office and that, according to the court, showed that someone on plaintiffs’ behalf 

had opened the e-file or e-mail with respect to the court-originated scheduling order. Counsel 

was baffled and explained to the court, “I don’t know how to open something and look at a 

scheduling order . . . .” We note that, as indicated above, the various e-filings that had indeed 

been opened via plaintiffs’ counsel’s e-mail address had been e-mailed to counsel as the result of 

defendant manually adding counsel as a service contact as to defendant’s court e-filings. But the 

scheduling order originated from the trial court, not defendant’s counsel. And the trial court’s 

reference to someone on plaintiffs’ behalf opening the e-mail revealing the scheduling order was 

simply inaccurate, where it was actually a second person from the law firm representing 

defendant who had opened it after defense counsel himself had earlier opened the e-mail.7

 

 The trial court next indicated that plaintiffs’ motion was more accurately coined a motion 

for reconsideration and that plaintiffs’ counsel acknowledged being aware of the registration 

requirement and simply failed to comply. The trial court then immediately concluded his ruling, 

stating: 

 However, as the Court noted, upon reviewing the history for service 

details and pleadings in this case, it appears that while no firm was specified to 

receive documents filed, that each – in each instance when a document was eserved that someone related to counsel’s client opened the pleadings on each 

occasion that they were filed. 

 At this point, a discussion ensued regarding the fact that no order had been entered on the 

trial court’s previous ruling. The trial court then signed a hastily-drafted, handwritten order that 

denied plaintiffs’ motion for relief from judgment and which further provided: 

 

7

 Upon examination of the service-detail records, the scheduling order was opened on the date it 

was e-filed under the e-mail address of the particular defense attorney representing defendant at 

the time. And on the following day, the e-filed scheduling order was opened under an e-mail 

address with the same e-mail extension as defense counsel and in the name of a person who 

throughout a portion of the litigation was identified as serving documents to plaintiffs on behalf 

of defendant; we assume this was a secretary or paralegal employed by the firm representing 

defendant. 
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 It is further ordered that this case is dismissed without prejudice & costs 

on the condition that all dates specified in the May 28, 2013 scheduling order and 

also the December 4, 2013 order striking Pl’s witness & exhibit lists shall apply to 

any subsequently filed lawsuits. This is a final order and disposes [of] all claims 

and parties. 

 Plaintiffs appealed as of right. On appeal, plaintiffs argue that the trial court erred in 

striking their witness and exhibit lists, and in subsequently imposing a sanction for plaintiffs’ 

failure to timely file those lists, which forever precluded plaintiffs from introducing evidence in 

support of their claims. Plaintiffs contend that the failure to file the witness and exhibit lists was 

due solely to an inadvertent and unintentional mistake, rather than willfulness, that there was no 

demonstrable prejudice to defendant, and that there had been no history in the case of a failure to 

comply with discovery requests and court orders. 

 We find it necessary to first construct the proper analytical framework for purposes of 

addressing this appeal. MCR 2.401 governs scheduling orders, which can encompass the setting 

of deadlines for the exchange and filing of witness and exhibit lists, MCR 2.401(B)(2)(a). And 

under MCR 2.401(I)(2), a trial court “may order that any witness not listed in accordance with 

this rule will be prohibited from testifying at trial except upon good cause shown.”8

 While MCR 

2.401 does not expressly address exhibit lists, a trial court certainly also has the discretion to 

strike an exhibit list that is not filed in conformance with a scheduling order. See EDI Holdings, 

LLC v Lear Corp, 469 Mich 1021; 683 NW2d 146 (2004) (trial court did not abuse its discretion 

when it enforced a summary disposition scheduling order); see also MCR 2.313(B)(2)(b) (court 

has the authority to prohibit the introduction of matters into evidence for discovery violations).9 

Considering that a plaintiff in a civil action has the burden of proof, there can be no reasonable 

dispute that when a plaintiff’s witness and exhibit lists are struck, thereby precluding testimony 

and the introduction of evidence, the plaintiff’s action is doomed and unsustainable. See Duray 

Dev, LLC v Perrin, 288 Mich App 143, 164; 792 NW2d 749 (2010) (“Disallowing a party to call 

witnesses can be a severe punishment, equivalent to a dismissal.”); Grubor Enterprises, Inc v 

 

8

 We note that MCR 2.401(I)(1) provides in part: 

 No later than the time directed by the court under subrule (B)(2)(a), the 

parties shall file and serve witness lists. The witness list must include: 

 (a) the name of each witness, and the witness' address, if known; however, 

records custodians whose testimony would be limited to providing the foundation 

for the admission of records may be identified generally; 

 (b) whether the witness is an expert, and the field of expertise. 

9

 Exhibit and witness lists are an element of discovery. Grubor Enterprises, Inc v Kortidis, 201 

Mich App 625, 628; 506 NW2d 614 (1993). 
-7- 

Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993) (“[D]isallowing the parties to testify 

when the witness list is stricken or prevented from being filed is the equivalent of a dismissal.”). 

 We confidently assume that had plaintiff here not swiftly filed the motion for voluntary 

dismissal following entry of the order striking the witness and exhibit lists, defendant would 

certainly have filed a motion for involuntary or summary dismissal. The trial court’s order 

striking plaintiffs’ witness and exhibit lists had the practical effect of dismissing their lawsuit. 

And the subsequent ruling expressly dismissing plaintiffs’ action, while flowing from plaintiffs’ 

motion for voluntary dismissal, was truly in the nature of an involuntary dismissal. See MCR 

2.504(B)(1) (“If a party fails to comply with these rules or 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.”). Moreover, for the reasons stated above, although the dismissal was deemed 

to be “without prejudice,” the dismissal was effectively “with prejudice,” in light of the fact that 

any future action by plaintiffs would be saddled with the condition that they could not present the 

testimony of witnesses, nor introduce exhibits, at trial, necessarily leading to dismissal of any 

suit on a theory comparable to res judicata or collateral estoppel. In sum, the proper analysis 

requires treating the trial court’s rulings as having resulted in an involuntary dismissal with 

prejudice, with the ultimate question being whether the trial court erred in striking the witness 

and exhibit lists. 

 “This Court reviews for an abuse of discretion a trial court’s decision to bar witness 

testimony after a party has failed to timely submit a witness list.” Duray Dev, 288 Mich App at 

162. We note that the language of MCR 2.401(I)(2) indicating that a court “may order” 

(emphasis added) the preclusion of a witness’s testimony supports the imposition of the abuseof-discretion standard. And an abuse of discretion exists when a trial court’s decision falls 

outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 

Mich 372, 388; 719 NW2d 809 (2006). We see no reason to conclude that a trial court’s 

decision to strike an exhibit list implicates a different standard of review; therefore, we likewise 

apply the abuse of discretion standard to the court’s decision to strike the exhibit list. See EDI 

Holdings, 469 Mich at 1021. In the context of this case, the trial court essentially sanctioned 

plaintiffs by striking the witness and exhibit lists, and in doing so the court made some 

underlying factual findings with respect to the conduct of plaintiffs’ counsel, which findings we 

review for clear error. MCR 2.613(C) (“Findings of fact by the trial court may not be set aside 

unless clearly erroneous.”); Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002). “A 

decision is clearly erroneous where, although there is evidence to support it, the reviewing court 

is left with a definite and firm conviction that a mistake has been made.” Kitchen, 465 Mich at 

661-662. 

 The language of MCR 2.401(I)(2) indicates that a trial court may contemplate striking a 

witness list for violation of its scheduling order, “except upon good cause shown” for the 

noncompliance. Accordingly, the first step in the analysis is to examine whether there was 

“good cause” for plaintiffs’ failure to comply with the scheduling order, which, if established, 

would require reversal, and, if not established, would require examination of whether the 

decision to impose sanctions nevertheless constituted an abuse of discretion under the 

circumstances. The trial court did not find acceptable or excusable the failure by plaintiffs’ 

counsel to register his e-mail address as a service contact, which led to the service failure. We 

do note that while we understand and appreciate the rule implemented by the Oakland Circuit 
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Court under the authority of AO 2007-3 that a party must register an e-mail address as a service 

contact or else the party will not be served with court orders, it would seem that when it comes to 

something as important as a scheduling order, the court’s e-filer might as a courtesy, if at all 

feasible and conducive to the system, simply contact counsel to make him or her aware of any 

registration failure. Plaintiffs’ complaint listed the e-mail address, phone number, and business 

address of counsel. That said, we do agree with the trial court that counsel had an obligation to 

know and comply with the court’s rules on e-filing. We also note that although the deadline for 

filing the witness and exhibit lists had already passed at the end of August 2013, plaintiffs’ 

counsel in late September 2013 and early October 2013 did not appear to make any inquiries to 

the court about any scheduling order or rush to file the lists despite having knowledge of 

defendant’s motion to extend deadlines and the resulting ruling. We conclude that plaintiffs 

have not shown “good cause” for failing to comply with the scheduling order with respect to the 

deadline for filing and exchanging witness and exhibit lists. And plaintiffs do not appear to even 

argue that “good cause” existed for the noncompliance. Rather, plaintiffs’ argument is focused 

on the claim that the sanction, effectively a dismissal of plaintiffs’ suit with prejudice, was not 

proper in light of all of the circumstances and the lack of prejudice to defendant. 

 Moving to the issue regarding whether the trial court abused its discretion in striking the 

witness and exhibit lists and in effectively dismissing plaintiffs’ suit with prejudice, we first note 

an underlying factual error made by the trial court, alluded to above, that the e-filed scheduling 

order had been opened by someone on plaintiffs’ behalf. For the reasons discussed earlier, this 

finding was clearly erroneous, where it was two members of the law firm representing defendant 

that had opened e-mails pertaining to the scheduling order, or someone with access to their email accounts, and not anyone on plaintiffs’ behalf. Further, the trial court appeared to place a 

great emphasis on its mistaken finding in rendering its decision, which in and of itself mandates 

reversal. Additionally, the trial court did not undertake the required analysis discussed in Duray 

Dev, wherein this Court observed: 

 Once a party has failed to file a witness list in accordance with the 

scheduling order, it is within the trial court's discretion to impose sanctions 

against that party. These sanctions may preclude the party from calling witnesses. 

Disallowing a party to call witnesses can be a severe punishment, equivalent to a 

dismissal. But that . . . does not mean that . . . a trial court cannot impose such a 

sanction even if it is equivalent to a dismissal. Because the decision is within the 

trial court's discretion, caselaw mandates that the trial court consider “the 

circumstances of each case to determine if such a drastic sanction is 

appropriate.” “[T]he record should reflect that the trial court gave careful 

consideration to the factors involved and considered all of its options in 

determining what sanction was just and proper in the context of the case before 

it.” Relevant factors can include, but are not limited to, 

 “(1) whether the violation was wilful or accidental; (2) the party's history 

of refusing to comply with discovery requests (or refusal to disclose witnesses); 

(3) the prejudice to the defendant; (4) actual notice to the defendant of the witness 

and the length of time prior to trial that the defendant received such actual notice; 

(5) whether there exists a history of plaintiff's engaging in deliberate delay; (6) the 

degree of compliance by the plaintiff with other provisions of the court's order; 
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(7) an attempt by the plaintiff to timely cure the defect[;] and (8) whether a lesser 

sanction would better serve the interests of justice. This list should not be 

considered exhaustive.” 

. . . 

 Here, the record does not reflect that the trial court gave consideration to 

these factors or considered all of its options in determining what sanction was just 

and proper in the context of the case before it. Therefore, on remand the trial court 

should reassess [the] request to testify, taking the above-mentioned factors into 

consideration and explaining its determination on the record. [Duray Dev, 164-

166 (citations omitted; initial two alterations in original).] 

 Here, given the trial court’s erroneous factual finding regarding who opened the e-filed 

scheduling order, and given the trial court’s failure to give consideration, let alone careful 

consideration, to the factors set forth in Duray Dev, we reverse and remand for further 

proceedings. Just as ordered in Duray Dev, we direct the trial court to consider the relevant 

factors and to explain its ultimate ruling on the record. 

 Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. We decline to award taxable costs under MCR 7.219. 

/s/ William B. Murphy 

/s/ Cynthia Diane Stephens 

/s/ Michael F. Gadola