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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 16, 2017 

v No. 329353 

Shiawassee Circuit Court 

ETHAN THOMAS SMITH, LC No. 15-007329-FH 

 Defendant, 

and 

TIMOTHY H. HAVIS and MICHELLE L. 

SHANNON, 

 Appellants. 

Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ. 

PER CURIAM. 

 Appellants represented defendant in a criminal case. Before trial, the trial court entered 

an order requiring appellants to pay $1,000 each in sanctions for failing to follow the trial court’s 

scheduling order. Appellants appeal the order for sanctions as of right. We vacate the sanctions 

order and remand for further proceedings consistent with this opinion. 

I. FACTS 

 Plaintiff charged defendant with one count of assault by strangulation, MCL 

750.84(1)(b), and one count of assault with intent to do great bodily harm less than murder, MCL 

750.84. The victim was defendant’s wife. In August 2015, appellants filed appearances on 

defendant’s behalf. Simultaneously with her appearance, Shannon sought discovery under MCR 

6.201, asking for the “[n]ames and addresses of all witnesses, lay or expert, . . . including all res 

gestae witnesses.” Plaintiff responded by filing a res gestae and trial witness list on May 13, 

2015. 

The trial court entered a pretrial scheduling order on May 28, 2015. Significantly, it set 

August 13, 2015 as the “Motion Cut-Off Date,” requiring “[a]ll motions . . . to be . . . filed and 

heard by no later than . . . August 13, 2015.” To meet this deadline, the trial court stated that 

“[a]ll motions [must] be . . . scheduled six to eight weeks in advance.” The trial court also 
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ordered “the parties . . . to exchange lists of . . . witnesses as set forth in MCL 767.40a.” Trial 

was scheduled to begin September 1, 2015. 

Plaintiff filed an amended witness list with the trial court, and served Shannon with that 

list, on July 29, 2015. Significantly, plaintiff added Justin Allen to the witness list. The next 

day, plaintiff filed a MCL 768.27b notice with the trial court, and served it upon Shannon, 

indicating that it “intend[ed] to introduce evidence of defendant’s commission of other acts of 

domestic violence.” Plaintiff claimed that defendant had previously “assaulted” the victim on 

March 25, 2012, that Allen “walked in [ ]on the altercation,” “pull[ed] . . . defendant from” the 

victim, and helped her escape. 

Defendant then objected to plaintiff’s MCL 768.27b notice, arguing that plaintiff 

provided no contact information for Allen and that an evidentiary hearing was required to assess 

the accuracy of Allen’s testimony. Defendant also asked for a ruling on the admissibility of the 

MCL 768.27b evidence “well before trial” so that defendant had a “reasonable opportunity to 

locate and subpoena” rebuttal witnesses. Defendant then filed a witness list on August 31, 2015, 

adding Merry Smith, Josephine Pine, and “[r]ebuttal witnesses as needed.” Defendant asserted 

that he could file a late witness list so long as it was in “the best interest of justice.” 

After a hearing, the trial court found that plaintiff submitted its MCL 768.27b notice in a 

timely manner, both under the statute and pursuant to the scheduling order. The trial court also 

concluded that the prior, alleged act was less than “10 years old” and was similar enough to the 

charged act to be probative, that defendant’s arguments about Allen’s testimony go “more to 

weight than admissibility,” and that the evidence was admissible under MRE 403 because it 

would cause no “unfair” prejudice to defendant. 

Turning to defendant’s compliance with its scheduling order and court rules, the trial 

court noted that defendant had not yet properly filed its witness list. The trial court pointed out 

that MCR 6.201(F) required defendant to disclose witnesses by June 5, 2015, that its own 

scheduling order did not modify this deadline, and that MCL 767.94a required defendant to file 

its witness list “ ‘not later than 10 days prior to trial,’ ” which was scheduled for September 1, 

2015. Therefore, the trial court concluded, defendant failed to comply with both the court rules 

and the court’s scheduling order. Further, the trial court stated that defendant did not “file[ ] a 

motion to add additional witnesses” and failed to “demonstrate[ ] good cause for fail[ing] to 

comply with the court rules.” 

The trial court indicated it would not exercise its “discretion to allow late-filed 

witnesses.” Instead, the trial court adjourned trial until September 15, 2015, and required 

defendant to “submit a Witness List within 5 days,” including “names and contact information 

for each witness the [d]efense intends to call in either its case in chief or in rebuttal.” 

The trial court characterized defendant’s “disclosures” as “late” and stated that it had the 

“authority to fashion a remedy for discovery violations” and to order “sanctions for willful 

violation[s] of discovery rule[s]” pursuant to MCR 6.201(J). Explaining that appellants “fail[ed] 

to follow the [trial court’s] scheduling order,” the trial court ordered each to pay a $1,000 

sanction. 
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II. ANALYSIS 

 Appellants argue that the trial court lacked authority in this instance to order sanctions. 

This Court reviews for an abuse of discretion trial court sanction orders entered pursuant to MCR 

6.201(J). People v Jackson, 292 Mich App 583, 591; 808 NW2d 541 (2011). “An abuse of 

discretion occurs when the trial court’s decision is outside the range of reasonable and principled 

outcomes.” Id. 

 According to MCR 2.401(B)(1)(c),1 a trial court may enter a scheduling order “setting 

time limitations for the processing of the case and establishing dates when future actions should 

begin or be completed in the case.” MCR 2.401(B)(2)(a) further provides that the court “shall 

establish times for events the court deems appropriate[.]” It is within a trial court’s discretion “to 

decline to entertain actions beyond the agreed time frame.” People v Grove, 455 Mich 439, 469; 

566 NW2d 547 (1997).2 “Were the rules not so construed, scheduling orders would quickly 

become meaningless.” Id. 

“MCR 6.201 governs and defines the scope of criminal discovery.” People v Greenfield, 

271 Mich App 442, 447; 722 NW2d 254 (2006).3

 If a party violates the court rule, a trial court 

has “discretion” “to provide the discovery or permit the inspection of materials not previously 

disclosed, grant a continuance, prohibit the party from introducing in evidence the materials not 

disclosed, or enter such other order as it deems just.” MCR 6.201(J). And, if a party commits a 

“[w]ilful violation . . . of an applicable discovery rule or an order issued pursuant thereto,” a trial 

court “may subject counsel to appropriate sanctions.” MCR 6.201(J). 

The trial court’s pretrial scheduling order required “the parties . . . to exchange lists of . . . 

witnesses as set forth in MCL 767.40a.” Appellants argue that MCL 767.40a only requires 

plaintiff—not defendant—to disclose witnesses. But even if the trial court did not have the 

authority to sanction appellants for failing to follow MCL 767.40a, defendant and his attorneys 

 

1

 The rules of civil procedure apply in criminal proceedings unless (1) provided otherwise by the 

rules, (2) it clearly appears that the rule(s) apply only to civil proceedings, or (3) a statute or 

court rule provides for a like or different procedure. MCR 6.001(D). 

2

 We recognize that in People v Franklin, 491 Mich 916; 813 NW2d 285 (2012), our Supreme 

Court stated that, “Grove has been superseded by MCR 6.310(B).” However, that subrule 

applies to a request to withdraw a plea, which was not at issue in this case. 

3

 At the hearing, in explaining its rationale for ordering sanctions, the trial court stated that 

pursuant to MCR 6.201(J) it had the “authority to fashion a remedy for discovery violations,” 

including imposing sanctions, for what it characterized as appellants’ willful violation of 

discovery rules. However, the trial court’s written order imposing sanctions states that 

appellants were sanctioned for “failing to follow the [trial] court’s scheduling order.” Though 

there is little difference between the oral ruling and written order, our analysis is focused on the 

trial court’s written order, as it is well-established that a “trial court speaks through its written 

orders.” People v Davie (After Remand), 225 Mich App 594, 600; 571 NW2d 229 (1997). 
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were obligated to follow that order until it was overturned or vacated. This holds true even if 

there is a legitimate question regarding whether the trial court could enforce the statute against 

defendant.4

 We said as much in In re Contempt of Dudzinski, 257 Mich App 96, 110; 667 NW2d 

68 (2003), where we held, quoting Kirby v Michigan High School Athletic Ass’n, 459 Mich 23, 

40; 585 NW2d 290 (1998), that “ ‘[a] party must obey an order entered by a court with proper 

jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being held in 

contempt and possibly being ordered to comply with the order at a later date.’ ” As we held in In 

re Dudzinski, a party is not entitled to ignore or disobey a court order simply on the belief that 

the order was invalid and would be overturned on appeal: 

Civil disobedience is not the appropriate course of action when a person disagrees 

with a court order. We are a society of laws and the legal remedy available to 

appellant was to seek leave to appeal the trial court's order precluding him from 

wearing his shirt. Appellant elected not to pursue his legal remedy, and instead 

elected to willfully disobey a valid albeit erroneous court order. A person may 

not disregard a court order simply on the basis of his subjective view that the 

order is wrong or will be declared invalid on appeal. Allowing such behavior 

would encourage noncompliance with valid court orders on the basis of 

misguided subjective views that the orders are wrong. There exists no place in 

our justice system for self-help. [In re Dudzinski, 257 Mich App at 111.] 

Consequently, we need not decide whether the trial court had the authority to require defendant 

to comply with MCL 767.40a, and instead turn our attention to whether the sanctions ordered 

were an abuse of discretion. We conclude that they were. 

 We review the amount of the sanctions ordered for an abuse of discretion, In re Costs and 

Attorney Fees, 250 Mich App 89, 104; 645 NW2d 697 (2002), and for several reasons we 

conclude that the amount ordered was well outside the range of reasonable and principled 

outcomes.5

 First, the violation was tardy compliance with the scheduling order’s witness list 

requirements. But, as the Court recognized in People v Burwick, 450 Mich 281, 298; 537 NW2d 

813 (1995), “where a continuance can accomplish both objectives [enhancing the reliability of 

the fact finding process and providing enough time to meet the proofs], it serves administrative 

efficiency and is the remedy of choice.” Here, the trial court did adjourn trial to allow defendant 

to file his witness list and give the prosecutor time to prepare in light of the list, which satisfied 

both statutory objectives. Typically that remedy would be sufficient. 

 

4

 See Greenfield, 271 Mich App at 447-449 (Courts can only require the discovery allowed for 

within MCR 6.201). 

5

 “When determining the appropriate remedy for discovery violations, the trial court must 

balance the interests of the courts, the public, and the parties in light of all the relevant 

circumstances, including the reasons for noncompliance.” People v Banks, 249 Mich App 247, 

252; 642 NW2d 351 (2002). Further, the complaining party must show that the violation caused 

him or her actual prejudice. Davie (After Remand), 225 Mich App at 598. 
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 Second, “[a]n appellate court cannot review a decision for abuse of discretion unless it 

knows how and why the discretionary decision was made.” Houston v Southwest Detroit 

Hospital, 166 Mich App 623, 631; 420 NW2d 835 (1987). Here, the trial court never explained 

why it chose $1,000 per attorney as the appropriate amount, making it difficult for us to review 

this discretionary decision. Third, as the trial court recognized, there was little prejudice to the 

prosecution’s trial preparation in light of the trial court’s adjournment of trial and defendant’s 

filing of a witness list containing only two names additional to those contained on the 

prosecutor’s list. People v Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002). Fourth, 

although we recognize the trial court’s need to ensure compliance with its orders and to order 

some additional remedy beyond the adjournment, a $2,000 sanction for this singular violation 

that resulted in minimal prejudice to the court or the prosecutor, was—absent any explanation for 

the amount—outside the range of principled outcomes. The significant amount went beyond 

acting as an additional remedy. Instead, and in light of the minimal violation that occurred and 

without further explanation, it appeared more punitive in nature and disproportionate to the 

violation. For these reasons we vacate the order and remand for the trial court to reassess the 

amount of sanctions in light of this opinion. 

 Order vacated and remanded for further proceedings consistent with this opinion. We do 

not retain jurisdiction. 

/s/ Peter D. O’Connell 

/s/ Jane E. Markey 

/s/ Christopher M. Murray