RANDIE K GRIER V SUNSHINE AUTO COLLISION INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
RANDIE K. GRIER,
UNPUBLISHED
March 30, 2010
Plaintiff-Appellant,
and
ANGELA ISBY,
Plaintiff,
v
SUNSHINE AUTO COLLISION, INC., a/k/a
SUNSHINE AUTO COLLISION CORP., a/k/a
SUNSHINE AUTO COLLISION COMPANY,
and HASSAN GHAZALI,
No. 287877
Wayne Circuit Court
LC No. 05-515942-CH
Defendants-Appellees,
and
KAREN ANDERSON, JUNE L. FOSTER, and
CURTIS THURSTON,
Defendants.
Before: Hoekstra, P.J., and Stephens, and M.J. Kelly, JJ.
PER CURIAM.
In this property dispute, plaintiff appeals as of right an order dismissing his case as a
result of discovery violations. We affirm.
First, plaintiff argues that Wayne Circuit Court Chief Judge William J. Giovan erred by
not disqualifying Judge Isidore B. Torres pursuant to MCR 2.003 because Judge Torres had a
predisposed bias toward plaintiff, as exhibited by his refusal to allow plaintiff to participate in an
in-chambers meeting. We disagree. In reviewing a motion to disqualify a judge, the trial court’s
findings of fact are reviewed for an abuse of discretion and trial court’s application of those facts
to the relevant law is reviewed de novo. In re Contempt of Henry, 282 Mich App 656, 679; 765
NW2d 44 (2009).
-1-
MCR 2.003(B)(1) provides that “a judge is disqualified when the judge cannot
impartially hear a case” including when a “judge is personally biased or prejudiced for or against
a party or attorney[.]” A party who challenges a judge for personal bias or prejudice must
overcome a heavy presumption of judicial impartiality. Cain v Dep’t of Corrections, 451 Mich
470, 497; 548 NW2d 210 (1996).
In general, the challenger must prove that the judge harbors actual bias in favor of or
prejudice against either a party or a party’s attorney that is both personal and extrajudicial. Van
Buren Twp v Garter Belt, Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003). Bias or prejudice
has been defined as “an attitude or state of mind that belies an aversion or hostility of a kind or
degree that a fair-minded person could not entirely set aside when judging certain persons or
causes.” Cain, 451 Mich at 495, n 29, quoting United States v Conforte, 624 F2d 869, 881 (CA
9, 1980). The opinions formed by a judge based on facts introduced or events that occurred
during the proceedings do not constitute bias or prejudice unless the judge exhibits deep-seated
favoritism or antagonism that makes the exercise of fair judgment impossible. Cain, 451 Mich at
496.
Although plaintiff raised additional grounds for disqualification before the Chief Judge of
the trial court, his sole argument on appeal is that disqualification was necessary because Judge
Torres excluded him from an in-chambers meeting and is biased against him because of his
status as a pro se litigant. The Chief Judge of the trial court found both that there was
insufficient proof of plaintiff being excluded from any pre-trial chambers conference and that at
the time of the alleged exclusion the plaintiff’s interest in the litigation was questionable. In
addition, the Chief Judge of the trial court found that there was no evidence that Judge Torres
had a policy of excluding pro se litigants from in-chambers meetings. Although plaintiff points
to the testimony of defendants’ former attorney, who indicated that there was an in-chambers
meeting in which plaintiff did not participate, the circumstances for plaintiff’s non-participation
were not divulged. Excluding a pro se litigant from an in-chambers meeting would have been a
mistake if it had occurred; however, mistakes during proceedings are generally not grounds for
disqualification. See Gates v Gates, 256 Mich App 420, 440; 664 NW2d 231 (2003) (noting that
judicial rulings almost never constitute a valid basis for a motion alleging bias). Even
considering the possible exclusion of plaintiff from an in-chambers meeting, plaintiff cites no
facts showing that Judge Torres harbors actual bias or prejudice against plaintiff. As a result,
Chief Judge Giovan properly denied plaintiff’s motion.
Plaintiff also argues that the trial court’s denial of his motion to disqualify Judge Torres
denied him his due process right to a fair trial. A judge may be disqualified without a showing of
actual bias “where experience teaches us that the probability of actual bias . . . is too high to be
constitutionally tolerable.” Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352
(1975) (internal quotations and citations omitted); see also Kloian v Schwartz, 272 Mich App
232, 244; 725 NW2d 671 (2006). Among the situations presenting such a risk are: (1) where the
trial judge “has a pecuniary interest in the outcome,” (2) where the judge “has been the target of
personal abuse or criticism from the party before him,” (3) where the judge is “enmeshed in
[other] matters involving petitioner,” and (4) where the judge may have “prejudged the case
because of prior participation.” Crampton, 395 Mich at 351; Kloian, 272 Mich App at 244-245.
However, “disqualification for bias or prejudice is only constitutionally required in the most
extreme cases.” Cain, 451 Mich at 498.
-2-
Plaintiff argues that his exclusion from an in-chambers meeting must be interpreted as a
situation where the probability of actual bias is too high to be constitutionally tolerable. As
noted, the circumstances surrounding plaintiff’s alleged exclusion are not clear and plaintiff cites
no facts showing a bias on the part of Judge Torres, let alone a bias severe enough to rise to the
level of violating plaintiff’s due process rights. Therefore, because of the scarcity of any
evidence supporting the probability of an actual bias, plaintiff’s argument must fail.
Plaintiff also argues that the trial court abused its discretion by dismissing his case as a
sanction for the violation of discovery orders because the record is silent regarding what
discovery was being sought, whether plaintiff’s alleged failure was accidental or involuntary, and
what prejudice defendants suffered. Further, plaintiff contends that his conduct and any
prejudice suffered by defendants did not warrant dismissal. We disagree.
A trial court’s decision on whether to impose discovery sanctions is reviewed for an
abuse of discretion. Local Area Watch v Grand Rapids, 262 Mich App 136, 147; 683 NW2d 745
(2004). “An abuse of discretion occurs when the decision results in an outcome falling outside
the principled range of outcomes.” Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842
(2006).
If a party fails to obey a discovery order, MCR 2.313(B)(2)(c) permits the court to enter
“an order striking pleadings or parts of pleadings, staying further proceedings until the order is
obeyed, dismissing the action or proceeding or a part of it, or rendering a judgment by default
against the disobedient party.” Dismissal is the harshest sanction available and is warranted only
in extreme cases. Schell v Baker Furniture, Co, 232 Mich App 470, 475; 591 NW2d 349 (1998),
aff’d 461 Mich 502 (2000); Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 507; 536
NW2d 280 (1995). A court should employ the drastic sanction of dismissal only “where there
has been a flagrant and wanton refusal to facilitate discovery, and where the failure has been
conscious or intentional, rather than accidental or involuntary.” Frankenmuth Mutual Insurance
Company v ACO, Inc, 193 Mich App 389, 396-397; 484 NW2d 718 (1992). Further, sanctions
under MCR 2.313(B) may not be imposed in the absence of a discovery order. Brenner v Kolk,
226 Mich App 149, 158-159, 573 NW2d 65 (1997).
In Bass v Combs, 238 Mich App 16, 26; 604 NW2d 727 (1999), overruled on other grds
Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618; 752 NW2d 37
(2008), this Court stated:
The trial court should carefully consider the circumstances of the case to
determine whether a drastic sanction such as dismissing a claim is appropriate.
Severe sanctions are generally appropriate only when a party flagrantly and
wantonly refuses to facilitate discovery, not when the failure to comply with a
discovery request is accidental or involuntary. The record should reflect that the
trial court gave careful consideration to the factors involved and considered all its
options in determining what sanction was just and proper in the context of the
case before it. [Citations omitted.]
The Bass Court cited the following factors to be considered in determining the appropriate
sanction for a discovery violation:
-3-
“(1) [W]hether 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 [other party]; (4) actual notice to the [other party] of the
witness and the length of time prior to trial that the [other party] received such
actual notice; (5) whether there exists a history of [the party’s] engaging in
deliberate delay; (6) the degree of compliance by the [party] with other provisions
of the court's order; (7) an attempt by the [party] to timely cure the defect[;] and
(8) whether a lesser sanction would better serve the interests of justice.” [Bass,
238 Mich App at 26-27, quoting Dean v Tucker, 182 Mich App 27, 32-33; 451
NW2d 571 (1990).]
The record supports a finding that there was a repeated failure on the part of plaintiff to
provide discovery and obey the trial court’s orders. The trial court issued discovery orders on
two separate occasions, ordering plaintiff to produce previously requested documents and to
fully and completely answer interrogatories. The first order was issued on May 30, 2008, and
the second on July 21, 2008. Both orders referenced the same discovery materials. No motions
for reconsideration or clarification were filed with the court. In correspondence between the
parties, plaintiff claimed confusion about what was requested of him and defendant reiterated
that his discovery requests were mailed to the court. After plaintiff’s disregard of the first order,
the trial court sanctioned plaintiff $1,150 as part of the second order. When plaintiff neither
provided the discovery nor paid the sanction, the trial court determined that the sanction of
dismissal was proper because plaintiff had flagrantly and willfully violated its orders to
defendant’s detriment. The trial court received argument from the parties and reviewed the file.
His order reflected his finding that plaintiff was in receipt of the discovery requests and had
completely failed to provide any of the requested documents relating to his acquisition of the
subject property. Credibility is generally a finding that we leave to the fact-finder. Dep’t of
Community Health v Risch, 274 Mich App 365, 372; 733 NW2d 403 (2007). Since plaintiff
claims an interest in land acquired by written instruments two months after the case was filed by
Ms. Isby, the requested documents are of great relevance. The trial court explicitly found that
defendants had been prejudiced in their ability to defend the matter. The trial judge found that
the failure to comply with the court orders was knowing and that given an opportunity to cure his
failure, he deliberately chose to delay and continue his non-compliance.
In total, the record reflects that the trial court gave careful consideration to the factors
involved and considered all its options in deciding to dismiss the case. Therefore, based on the
foregoing, we conclude that the trial court’s decision to sanction to plaintiff by dismissing the
case was not an abuse of discretion.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
/s/ Michael J. Kelly
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
