BAY VALLEY HARBOR LTD V MICHIGAN MILLERS MUTUAL INSUR
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STATE OF MICHIGAN
COURT OF APPEALS
BAY
VALLEY
HARBOR
LIMITED
PARTNERSHIP, d/b/a BAY VALLEY HARBOR
APARTMENTS,
UNPUBLISHED
June 17, 2004
Plaintiff-Appellant,
v
MICHIGAN MILLERS MUTUAL INSURANCE
COMPANY,
No. 246525
Macomb Circuit Court
LC No. 2001-001962-CK
Defendant-Appellee.
Before: Neff, P.J., and Zahra and Murray, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order dismissing its complaint for failure
to comply with a court order. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Plaintiff’s sole claim on appeal is that the trial court abused its discretion in dismissing
the case for plaintiff’s failure to comply with a discovery order. The record clearly shows that
while defendant filed motions to compel discovery, it never moved to dismiss for plaintiff’s
failure to comply with the resulting orders and the case was not dismissed on that ground.
Further, the record shows that while defendant did move to dismiss for plaintiff’s failure to file a
witness list, that motion was denied. The court subsequently dismissed the action because
plaintiff failed to pay costs as directed. Thus, the issue as stated is without merit.
We note that in its brief, plaintiff contends that the court improperly dismissed the case
for the failure to pay costs. That issue has not been preserved for appeal because it was not
included in the statement of questions presented for appeal and thus need not be considered.
Busch v Holmes, 256 Mich App 4, 12; 662 NW2d 64 (2003). In any event, the argument is
without merit. The record shows that plaintiff had a history of failure to comply with pretrial
procedure and court orders. Even though it failed to file a witness list, the court did not dismiss
the case but imposed a lesser sanction which allowed plaintiff to proceed to trial. However, it
conditioned the lesser sanction on payment of costs by a date certain or else the case would be
dismissed. Plaintiff deliberately did not pay the costs by the due date because an order
embodying the court’s ruling had not been entered. The court accepted that as a valid excuse and
did not dismiss the case. Instead, it entered an order extending the date for payment of costs,
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again subject to dismissal for noncompliance. Plaintiff chose not to pay despite knowledge of
the consequences. Under the circumstances, the court’s order of dismissal did not constitute an
abuse of discretion. Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d
280 (1995).
Affirmed.
/s/ Janet T. Neff
/s/ Brian K. Zahra
/s/ Christopher M. Murray
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