ALICIA JACKSON V MAZEN FOODS
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STATE OF MICHIGAN
COURT OF APPEALS
ALICIA JACKSON,
UNPUBLISHED
April 10, 2001
Plaintiff-Appellee,
v
MAZEN FOODS, an assumed name of BASHER
& MARK BROTHERS MARKET, INC., and
FRANK DOE,
No. 220615
Wayne Circuit Court
LC No. 96-610244-NO
Defendants-Appellants.
Before: Talbot, P.J., and Sawyer and F. L. Borchard*, JJ.
PER CURIAM.
Defendants appeal by leave granted from the order of the circuit court that reinstated
plaintiff’s complaint two years after it was dismissed as a result of plaintiff’s failure to pay the
statutory filing fees mandated by a 1997 circuit court order transferring the case to district court.
We reverse. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendants argue on appeal that the trial court abused its discretion in granting
reinstatement of the complaint on the basis that the 1997 transfer order was improper and that the
court clerk had failed to send notice of the dismissal to plaintiff or plaintiff’s counsel. Although
the trial court did not cite MCR 2.612 in its ruling, we review it in that context because plaintiff
relied upon that rule in moving for reinstatement. We review a trial court’s decision on a motion
brought under MCR 2.612 for an abuse of discretion. Heugel v Heugel, 237 Mich App 471, 478;
603 NW2d 121 (1999).
Relief under MCR 2.612(C)(1)(a) for mistake or excusable neglect constituted an abuse
of discretion because plaintiff’s motion was not brought within one year of the order of
dismissal, as required under MCR 2.612(C)(2). Altman v Nelson, 197 Mich App 467, 477-478;
495 NW2d 826 (1992).
Relief under MCR 2.612(C)(1)(f) for “any other reason justifying relief” also constituted
an abuse of discretion given that these facts do not reflect the type of extraordinary circumstances
that would justify relief under the subrule. Plaintiff’s counsel concedes that he received a copy of
* Circuit judge, sitting on the Court of Appeals by assignment.
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the 1997 transfer order, which clearly mandated the payment of a filing fee or else the action
would be dismissed. Plaintiff’s counsel’s failure to comply with the transfer order followed by a
lack of diligence in maintaining the action is not excusable under subrule (f). Relief under this
subrule was not designed “to correct a failure to act or an ill-advised or careless decision by
counsel.” Mikedis v Perfection Heat Treating Co, 180 Mich App 189, 200; 446 NW2d 648
(1989); Lark v Detroit Edison Co, 99 Mich App 280, 283; 297 NW2d 653 (1980). See also
Altman, supra at 478. Similarly, the failure of the clerk to send plaintiff’s counsel notice of the
dismissal does not operate to excuse the reason for the dismissal in the first place—plaintiff’s
counsel’s conscious failure to comply with the order requiring payment of the filing fee.
Moreover, we would conclude that plaintiff’s motion under subrule (f) was not brought
within a reasonable time as required under MCR 2.612(C)(2). See Altman, supra at 479;
Tomblinson v Tomblinson, 183 Mich App 589, 595-596; 455 NW2d 346 (1990).
Reversed. We lift the stay of proceedings previously granted by this Court.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Fred L. Borchard
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