ROBERT SCHMIDT V CAROL LAVONNE MITCHELL
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT SCHMIDT and SHEILA SCHMIDT,
UNPUBLISHED
August 23, 2002
Plaintiffs-Appellants,
v
CAROL
LAVONNE
MITCHELL
and
SUBURBAN
MOBILITY
AUTHORITY
REGIONAL TRANSPORTATION AUTHORITY, d/b/a SMART TRANSPORTATION,
No. 233290
Wayne Circuit Court
LC No. 99-939110-NO
Defendants-Appellees.
Before: White, P.J., and Neff and Jansen, JJ.
MEMORANDUM.
Plaintiffs appeal as of right from a circuit court order dismissing the action. We reverse
and remand. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
After the trial court ruled that defendant Mitchell’s personnel file was not discoverable,
plaintiffs requested the information from defendant SMART under the Freedom of Information
Act, MCL 15.231 et seq.1 The court granted defendants’ motion to dismiss for violation of its
order. MCR 2.504(B)(1). We review the trial court’s decision to dismiss an action for an abuse
of discretion. Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995).
Although dismissal of the action was authorized, Cummings v Wayne Co, 210 Mich App
249, 252-253; 533 NW2d 13 (1995); MCR 2.504(B)(1), it “is a drastic step that should be taken
cautiously.” Vicencio, supra. “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.” Brenner v Kolk, 226 Mich App 149, 163-164; 573 NW2d 65 (1997). Factors
to be considered in determining whether dismissal is an appropriate sanction include: (1)
whether the violation was willful or accidental; (2) the degree of compliance with other parts of
the order; (3) attempts to cure the defect; (4) whether the party has a history of refusing to
comply with other court orders; (5) whether the party has a history of deliberately delaying the
1
Defendant released a redacted copy of the file even though it was exempt from disclosure.
MCL 15.243(1)(v).
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proceedings; (6) whether the opposing party has been prejudiced; and (7) whether a lesser
sanction would better serve the interests of justice. Vicencio, supra at 507.
Although the trial court found that counsel’s violation of its order was willful, it did not
address the other factors or consider lesser sanctions. Accordingly, we reverse the order of
dismissal and remand for a determination regarding an appropriate sanction in light of the
appropriate factors.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Helene N. White
/s/ Janet T. Neff
/s/ Kathleen Jansen
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