SAMUEL H GUN V GROEB FARMS INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
SAMUEL H. GUN and MARY T. MORGAN,
July 17, 1998
GROEB FARMS, INC., ERNEST L. GROEB, JR.,
ERNEST L. GROEB and JEANNE GROEB,
Lenawee Circuit Court
LC No. 95-006602 CZ
Before: Murphy, P.J., and Young, Jr. and Michael R. Smith*, JJ.
Plaintiffs appeal by right the circuit court order of dismissal based on plaintiffs’ failure to appear
for trial. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiffs filed this action on July 31, 1995, alleging breach of contract, improper accounting, and
fraud in regard to the purchase of a business by defendants. Plaintiff Gun acted as counsel for plaintiffs.
Trial was originally set for October 25, 1996, but was rescheduled for January 17, 1997.
The day before trial, the court confirmed that trial would begin at 9:00 a.m. Instead of arriving
earlier, plaintiff Morgan made arrangements to fly from Chicago on the morning of trial, purportedly due
to concerns about the weather. The flight was scheduled to arrive at Detroit Metro at 8:05 a.m., leaving
insufficient time to arrive for trial. Plaintiff Gun made calls to the courthouse at 8:45 a.m. and 9:05 a.m.,
leaving messages that he would be late for trial. The messages were not reviewed before the case was
The case was called for trial at 9:10 a.m. When plaintiffs had not appeared at 9:20, the court
dismissed the case with prejudice at defendants’ request. At the hearing on entry of the order of
dismissal, the court found that plaintiffs had been repeatedly late for proceedings. The court recalled
that the trial date was confirmed on the morning of the day before trial, and plaintiff Gun had been
* Circuit judge, sitting on the Court of Appeals by assignment.
instructed that trial would begin promptly at 9:00 a.m. Gun had been informed that he should be present
at that time, even if his witnesses were late. The court entered an order dismissing the case.
A court, in its discretion, may dismiss a case with prejudice or enter a default judgment when a
party or counsel fails to appear at a duly scheduled trial. MCR 2.504(B)(1); Vicencio v Ramirez, 211
Mich App 501, 506; 536 NW2d 280 (1995). This Court reviews a trial court’s decision to dismiss an
action under an abuse of discretion standard. Id.; Zantop Int’l Airlines, Inc v Eastern Airlines, 200
Mich App 344, 359; 503 NW2d 915 (1993).
Dismissal is a drastic step that should be taken cautiously. Vicencio, supra. Before imposing
such a sanction, a trial court should carefully evaluate all available options, and conclude that dismissal is
just and proper. Id. Factors to be considered include: (1) whether the violation was willful 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 exists 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. Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571
The trial court did not abuse its discretion in dismissing this action. The court could reasonably
conclude that plaintiffs’ violation was willful based on counsel’s inconsistent and unsatisfactory
explanation for his failure to appear. Given plaintiffs’ prior delays and failure to follow the court’s
orders, the court acted within its discretion in dismissing the case.
/s/ William B. Murphy
/s/ Robert P. Young, Jr.
/s/ Michael R. Smith