CHERYL GALE V LYNN MILLS
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL GALE,
UNPUBLISHED
September 20, 1996
Plaintiff-Appellant,
v
No. 171661
LC No. 93-308305
LYNN MILLS, PATRICK MAHONEY,
ANDREW BURNETTE, ADVOCATES FOR
LIFE, OPERATION RESCUE, THE JOSHUA
PROJECT, CHRISTIAN DEFENSE
COALITION and COUNTY OF OAKLAND,
Defendant-Appellees.
Before: Cavanagh, P.J., and Marilyn Kelly and J.R. Johnson,* JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court order of dismissal with prejudice. We reverse and
remand for proceedings consistent with this opinion.
On February 15, 1993, Hugh Gale, plaintiff’s husband, took his own life in the presence of Jack
Kevorkian. On March 22, 1993, plaintiff filed this lawsuit, claiming that defendants defamed her by
stating that she “assisted, consented and/or acquiesced in the death of her husband.” In addition,
plaintiff alleged negligence, gross negligence, willful and wanton misconduct, false light, invasion of
privacy, humiliation, personal injury, and intentional infliction of emotional distress. The law firm retained
by plaintiff, Fieger, Fieger and Schwartz, also represents Kevorkian.
Defendants’ counsel attempted to depose Kevorkian. According to defense counsel, attorney
Geoffrey Fieger responded to her attempts by saying, “Ha, you’ll never get Kevorkian.”1 Subsequently,
according to defense counsel, on one occasion Fieger’s secretary misrepresented Kevorkian’s
whereabouts, and on another Fieger falsely claimed that he could not attend the deposition because he
was going to be in Connecticut. In a letter to defense counsel, attorney Michael Schwartz threatened to
report her to the Attorney Grievance Commission if she did not cease her efforts to depose Kevorkian.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Fieger argued that it would be unethical to call Kevorkian as a witness because the latter faced
possible charges and was pleading the Fifth Amendment. At a pretrial conference on September 10,
1993, the trial court agreed with defense counsel that Kevorkian was a material witness. On
September 26, 1993, a subpoena was issued and served upon Kevorkian. After Kevorkian moved to
quash the subpoena, the trial court ruled that he was a material witness. In addition, the trial court ruled
that Kevorkian was not entitled to refuse to answer questions about plaintiff’s conduct and ordered the
deposition to take place. Kevorkian was at that time in the Oakland County Jail on an unrelated matter,
and defense counsel attempted to depose Kevorkian there. Counsel’s efforts were unsuccessful;
Kevorkian was at that time on a hunger strike and stated that he did not feel well enough to proceed
with the deposition. However, the Oakland County sheriff submitted a letter to the trial court in which
he stated that Kevorkian was ambulatory in his cell, was able to converse with deputies, and was
making daily telephone calls.
In early December, the trial court held several hearings regarding Kevorkian’s noncompliance
with its previous order. On December 14, 1993, the trial court issued an opinion and order dismissing
plaintiff’s complaint pursuant to MCR 2.504(B)(1) and MCR 2.313(B)(2). The trial court found that
Fieger and Schwartz defied the subpoena issued by the court, advised a witness not to comply with the
subpoena, impeded the discovery of evidence essential to defendants’ defense of the case, improperly
threatened opposing counsel’s license, and violated both the court rules and the Rules of Professional
Conduct. The court further found that the actions of counsel could properly be charged to plaintiff.
On appeal, plaintiff argues that the trial court improperly invoked the sanction of dismissal for
the actions of a non-party witness. A court’s decision to dismiss an action is reviewed for an abuse of
discretion. Zantop Int’l Airlines, Inc v Eastern Airlines, 200 Mich App 344, 359; 503 NW2d 915
(1993). An abuse of discretion exists when the result is so palpably and grossly violative of fact and
logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of
discretion. Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992).
MCR 2.313(B)(2) states in pertinent part:
If a party or an officer, director, or managing agent of a party, or a person
designated under MCR 2.306(B)(5) or MCR 2.307(A)(1) to testify on behalf of a
party, fails to obey an order to provide or permit discovery, including an order entered
under subrule (A) of this rule or under MCR 2.311, the court in which the action is
pending may order such sanctions as are just, including but not limited to the following:
***
(c) 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[.]
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MCR 2.504(B)(1) provides:
If the plaintiff fails to comply with these rules or a court order, a defendant may
move for dismissal of an action or a claim against that defendant.
This Court construes court rules according to the same basic principles that govern statutory
interpretation. If the language of a court rule is clear and unambiguous, we apply its plain and ordinary
meaning. People v McEwan, 214 Mich App 690, 694; 543 NW2d 367 (1995). The language of
MCR 2.313(B) indicates that it applies to parties or to p
ersons acting in the capacity of a party.
Similarly, MCR 2.504 deals addresses involuntary dismissal as an appropriate sanctions when “the
plaintiff fails to comply with these rules or a court order.” Because the court rules cited on by the trial
court deal with the noncompliance of a party, rather than a nonparty witness, we conclude that the trial
court erred in relying on them in support of its order dismissing plaintiff’s complaint.
The trial court is vested with the authority to dismiss a lawsuit. However, this authority must be
exercised with caution. The trial court must evaluate all available options on the record before
concluding that the drastic sanction of dismissal is just and proper. Hanks v SLB Management, Inc,
188 Mich App 656, 658; 471 NW2d 621 (1991). Factors that should be considered by the trial court
in determining the appropriate sanction include (1) whether the violation was willful or accidental, (2) the
party’s history of refusing to comply with discovery requests or disclosure of witnesses, (3) prejudice to
the defendant, (4) actual notice of the witness to the defendant and the length of that notice, (5) the
plaintiff’s history of intentional delay, (6) the degree of plaintiff’s compliance with the orders of the court,
(7) any attempt by plaintiff to timely cure the defect, and (8) whether a lesser sanction would better
serve the interests of justice. Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990).
After carefully reviewing the record, we agree with the trial court that the actions of plaintiff’s
attorneys “show[ed] a bad faith effort to avoid compliance with the lawful process” of the court. Fieger
and Schwartz’s actions were dilatory, unprofessional, and in complete disregard of their position as
officers of the court. However, since the offending conduct was that of plaintiff’s counsel, we
nonetheless conclude that the trial court abused its discretion in dismissing the plaintiff’s lawsuit without
first considering lesser sanctions. Although the trial court’s frustration with plaintiff’s attorneys was
justified, by dismissing the lawsuit the trial court in effect penalized plaintiff for the conduct of her
attorneys. There is no indication she knew of, or condoned, their conduct.
Therefore, we reverse the trial court’s dismissal of the lawsuit and remand for consideration of
other available sanctions. The trial court recognized some of his options at pages 9 and 10 of his
opinion. MCR 2.313(B) provides an array of options, including an order directing the attorney advising
the party to pay reasonable expenses, including attorney fees. As the trial court recognized, it also has
the option of contempt proceedings. See MCL 600.1701; MSA 27A.1701. Case law also suggests
other options the court may wish to explore. See, e.g., In Re Contempt of Dougherty, 429 Mich 81,
98; 413 NW2d 392 (1987); Homestead Development Co v Holly Twp, 178 Mich App 239, 245
247; 443 NW2d 385 (1989). We do not intend to preclude the ultimate sanction of dismissal, but
merely decide today that the exercise of that sanction was premature.
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Mark J. Cavanagh
/s/ J. Richardson Johnson
I concur in result only.
/s/ Marilyn Kelly
1
Fieger denies that he made this statement.
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