ATTORNEY GENERAL V DONALD L HARKINSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ATTORNEY GENERAL and MICHIGAN
DEPARTMENT OF ENVIRONMENTAL
July 7, 1998
Oakland Circuit Court
LC No. 96-520092 CE
DONALD L. HARKINS,
Before: Griffin, P.J., and Gribbs and Talbot, JJ.
The trial court dismissed plaintiffs’ cause of action and awarded defendant $500 in costs after
plaintiffs failed to file a timely response brief to defendant’s motion for summary disposition. MCR
2.504(B)(1). We reverse.
Our system of law favors disposition of cases on the merits. Dismissal is a drastic step that
should be taken cautiously. Vincencio v Ramirez, 211 Mich App 501, 506; NW2d (1995). Before
imposing such a sanction, the trial court is required to carefully evaluate all available options on the
record and conclude that the sanction of dismissal is just and proper. Id. Some of the factors that a
court should consider before imposing the sanction of dismissal include: (1) whether the violation was
wilful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the
prejudice to the opposing party; (4) whether there was a history of deliberate delay; (5) the degree of
compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a
lesser sanction would better serve the interests of justice. Id. Where the trial court does not evaluate
other available options on the record, dismissal is an abuse of discretion. Id.
The trial court’s dismissal in this case was too harsh a remedy. Plaintiffs’ error was slight, the
risk of prejudice to defendant was minimal, and the trial court did not evaluate other available options.
Plaintiffs’ response brief, although late, was presented two weeks before oral argument was scheduled
on defendant’s motion for summary disposition. The pre-trial date in this action to require defendant to
restore illegally filled and/or dredged wetlands was still two months away. Further, plaintiffs’ counsel
experienced unavoidable delays during the preparation of the brief at issue. Counsel received
defendant’s motion for summary disposition late because of delays in the mail system. After further
delay caused by previously scheduled Thanksgiving travel, counsel suffered the total loss of her
response brief in a computer malfunction. In the weeks immediately following the briefing deadline,
counsel was stricken by severe respiratory flu, and was on previously scheduled holiday leave during
Christmas and New Year’s. Counsel offered the response brief at the default hearing. Defendant was
not prejudiced by the delay and the trial court could have chosen less drastic measures to remedy
plaintiffs’ counsel’s failure to timely file a brief.
/s/ Richard Allen Griffin
/s/ Roman S. Gribbs
/s/ Michael J. Talbot