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STATE OF MICHIGAN
COURT OF APPEALS
DOBBS & NEIDLE P.C.,
September 25, 2003
Wayne Circuit Court
LC No. 00-004235-CH
ANN MARTIN and ALFRED MARTIN,
Before: Donofrio, P.J., and Bandstra and O’Connell, JJ.
Defendants appeal as of right from the trial court’s final order resolving all claims
between the parties in LC No. 00-004235-CH. Plaintiff cross-appeals by right from that same
order. We affirm in part, reverse in part, and remand for further proceedings consistent with this
In 1998 the state of Virginia requested the extradition of defendant Alfred Martin, who
had escaped from a Virginia prison in 1974. Plaintiff Dobbs & Neidle represented Alfred in the
extradition proceedings. In lieu of a cash retainer, defendant Ann Martin granted Dobbs &
Neidle mortgages in two properties. Dobbs & Neidle performed legal services for Alfred from
November 1998 to February 1999, and subsequently billed Alfred for more than $45,000 in
attorney fees and costs. When Alfred failed to pay the legal bill, Dobbs & Neidle foreclosed on
During foreclosure, Dobbs & Neidle discovered that after Ann had granted it mortgages
on the properties, she conveyed the properties to another party. It was also discovered that
several persons who owned one of the parcels prior to Ann did not record the sale of the property
to Ann, and that Ann failed to discharge a prior mortgage on the property.
In February 2000, Dobbs & Neidle filed suit against the Martins asserting claims of
fraud, misrepresentation, and slander of title. Several other persons were also named as
defendants in an attempt to quiet title to the properties at issue. The Martins thereafter filed a
countercomplaint against Dobbs & Neidle, claiming that the fee charged by it in connection with
the extradition proceedings was excessive.
On October 2, 2000, the Martins moved to show cause and to compel discovery on their
counterclaim. However, the Martins’ counsel failed to appear at the October 13, 2000 hearing on
these motions. Consequently, the trial court denied the motions and ordered the Martins to pay
$1500 in costs to Dobbs & Neidle.
The following week, the Martins moved to set aside the order denying their motions and
awarding costs. At the hearing on this motion, the Martins’ counsel stated that he failed to
appear at the October 13, 2000 hearing because of a scheduling error. The trial court permitted
the motions to be re-filed, but refused to set aside the award of $1500 costs. In addition, the trial
court ordered that the costs be paid by November 3, 2000.
The Martins thereafter moved to extend the deadline for payment of the $1500 costs. On
November 3, 2000, the trial court denied the motion and ordered payment within ten days. The
court further ordered that “[i]f payment of said costs are not paid to [Dobbs & Neidle’s] counsel
within the time specified herein, a default judgment will enter against [the Martins].” The
Martins failed to pay the costs by the deadline set in the order and, on November 22, 2000, the
trial court entered a default in favor of Dobbs & Neidle on its complaint, and “dismissed with
prejudice” the Martins’ counterclaim against Dobbs & Neidle. Following an evidentiary hearing
on the issue of damages, the trial court issued a final judgment awarding Dobbs & Neidle
$98,749.77 in damages, and reiterating the Martins’ obligation to pay $1500 costs. The order
further stated that “all other claims and counter-claims having arisen in this matter as to these
parties only are hereby dismissed with prejudice . . . .”
After securing new counsel, the Martins filed a motion to set aside the default judgment.
On July 9, 2001, the trial court denied the motion to set aside the default judgment on the ground
that the Martins failed to show “good cause.” The court did, however, go on to rule that the
dismissal of the Martins’ counterclaim was too drastic and, therefore, the dismissal of the
counterclaim was amended to be without prejudice, thereby enabling the Martins to re-file their
counterclaims as a separate action.
On November 14, 2001, the trial court entered a final order. From this final order, the
Martins filed the instant appeal in which they assert that the trial court erred in granting a default
and default judgment on the basis of their non-payment of costs. Dobbs & Neidle has filed a
cross-appeal, alleging that the trial court abused its discretion in amending the dismissal of the
Martins’ counterclaim from a dismissal with prejudice to a dismissal without prejudice. For the
reasons that follow, we agree that the trial court erred in entering a default and default judgment
on Dobbs & Neidle’s complaint on the basis of the Martins failure to pay costs ordered in
connection with their counterclaim. We find no error, however, in the trial court’s decision to
amend dismissal of the Martins’ counterclaim to a dismissal without prejudice.
I. Default and Default Judgment
This Court reviews a trial court’s entry of a default judgment for an abuse of discretion.
McGee v Macambo Lounge, Inc, 158 Mich App 282, 285; 404 NW2d 242 (1987). It is well
settled that “a default judgment, to be valid, must be sanctioned by applicable state court rules.”
Id. In the instant case, it is clear from the lower court proceedings that the trial court was not
authorized by the court rules to enter a default judgment in favor of plaintiff, where defendants
never failed to plead or otherwise defend the original claim.
MCR 2.603(A)(1) states:
If a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend as provided by these rules, and that fact is made to
appear by affidavit or otherwise, the clerk must enter the default of that party.
The instant case did not involve a situation where defendants failed to plead or otherwise defend
against plaintiff’s original claim. Rather, defendants failed to obey the trial court’s order to pay
costs that were assessed pursuant to MCR 2.119(E)(4), as a result of defense counsel’s failure to
appear at his own motion regarding defendants’ counterclaim.
This Court has held that “as part of its inherent right to enforce obedience to its orders, a
court has the right to deny its processes to one who stands in contempt of its orders.” Homestead
Development Co v Holly Twp, 178 Mich App 239, 247; 443 NW2d 385 (1989).1 Similarly,
MCR 2.504(B) authorizes a trial court to, on its own initiative, enter an order of involuntary
dismissal if a plaintiff, or in this case a counterplaintiff, fails to comply with an order of the
court. 3 Dean & Longhofer, Michigan Court Rules Practice, p 53. Unless the court specifies
otherwise, the claim is dismissed with prejudice. Id. The trial court was, therefore, authorized to
dismiss the Martins’ counterclaim either with or without prejudice. However, the trial court’s
entry of a default judgment against defendants on the original claim was an abuse of discretion,
as that sanction was not provided for by the court rules. McGee, supra.
II. Amendment of Dismissal
We review a trial court’s order of dismissal for an abuse of discretion. Thorne v Carter,
149 Mich App 90, 93; 385 NW2d 738 (1986). This Court has held that “[d]ismissal with
prejudice of a claim is a harsh remedy and should be applied only in extreme circumstances.”
Mudge v Macomb Co, 210 Mich App 436, 444; 534 NW2d 539 (1995). It is well settled that
“our legal system favors disposition of litigation on the merits.” Vicencio v Ramirez, 211 Mich
App 501, 507; 536 NW2d 280 (1995). Our Supreme Court has noted:
Mindful of the fact that dismissal is a harsh remedy to be invoked cautiously, the
trial court should evaluate the length, circumstances, and reasons for delay in light
of the need of administrative efficiency and the policy favoring the decisions of
cases on their merits, considering among other factors: 1) the degree of the
plaintiff’s personal responsibility for the delay, 2) the amount of prejudice to the
defendant caused by the delay, 3) whether there exists a lengthy history of
deliberate delay, and 4) whether the imposition of lesser sanctions would not
better serve the interests of justice. [North v Dep’t of Mental Health, 427 Mich
659, 662; 397 NW2d 793 (1986).]
Plaintiff relies on Homestead, supra, to argue that a trial court has the authority to enter a
default judgment against a party where that party has not failed to plead or otherwise defend the
claim against it. We are not bound by Homestead, MCR 7.215(I), and, to the extent it can be
interpreted as authorizing such a default, we decline to follow it.
As noted above, the trial court here had the option of dismissing defendants’
counterclaim with or without prejudice. MCR 2.504(B); Dean & Longhofer, supra at p 53.
Considering the factors set forth in North, supra, it cannot be said that the trial court abused its
discretion in amending the dismissal of defendants’ counterclaim from a dismissal with prejudice
to one without prejudice. As noted, costs were assessed because of defense counsel’s failure to
appear at his own motion, and the trial court recognized as much. Moreover, inasmuch as
plaintiff was being represented by one of its principals, it cannot be said that plaintiff was
prejudiced by defendants’ failure to pay $1500 costs and, while defendants failed to pay the
ordered costs after twice being given the opportunity to do so, it similarly cannot be said that
such conduct amounts to a “lengthy history of deliberate delay.” Finally, the trial court evidently
believed that a dismissal without prejudice would better serve the interests of justice.2
Plaintiff also briefly argues that this Court must reverse the trial court’s order setting
aside the dismissal with prejudice of defendants’ counterclaim because dismissal with prejudice
is a final judgment on the merits for res judicata purposes. However, this Court has held that to
preserve a claim based upon res judicata for appellate review, a party must object on that ground
at the lower court level. In re Hensley, 220 Mich App 331, 335; 560 NW2d 642 (1996).
Plaintiff did not object to the amendment of the dismissal at the lower court level on res judicata
grounds. Therefore, we decline to consider this argument.
We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ Richard A. Bandstra
/s/ Peter D. O’Connell
We recognize that some case law lends support to plaintiff’s argument that the trial court was
justified in its initial decision to dismiss defendants’ counterclaim with prejudice. See Marquette
v Fowlerville, 114 Mich App 92, 95-97; 318 NW2d 618 (1982); see also Banaszewski v Colman,
131 Mich App 92, 94-95; 345 NW2d 647 (1983). Nonetheless, we do not find that the trial court
abused its discretion by reconsidering that decision. Mudge, supra; see also Comstock
Construction Co v LHG Investment Co, 126 Mich App 408, 411; 337 NW2d 82 (1983) (where
this Court reversed the trial court’s entry of an order dismissing the defendants’ counterclaim
where the defendant had not acted in bad faith, the concern for docket control did not justify the
actions imposed, and the one-hour delay caused by defense counsel’s error could have been
remedied by the imposition of costs).