Vicencio v. Ramirez

• Decision Date: 16 June 1995
• Docket Number: Docket No. 169320
• Citation: 211 Mich.App. 501,536 N.W.2d 280
• Parties: Normita D. VICENCIO, M.D., Plaintiff-Appellant, v. Jaime RAMIREZ, M.D., P.C., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 280

536 N.W.2d 280

211 Mich.App. 501

Normita D. VICENCIO, M.D., Plaintiff-Appellant, v. Jaime RAMIREZ, M.D., P.C., Defendant-Appellee.

Docket No. 169320.

Court of Appeals of Michigan.

Submitted March 21, 1995, at Detroit.

Decided June 16, 1995, at 9:05 a.m.

Released For Publication Aug. 30, 1995.

Romeo C. Lagonoy, Southfield for plaintiff.

Kull & Kull by David L. Kull, Farmington Hills, for defendant.

Before CONNOR, P.J., and WAHLS and HOEKSTRA, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's dismissal of this action alleging breach of contract. We affirm the trial court's denial of plaintiff's motion for summary disposition with regard to defendant's countercomplaint. However, we reverse the order dismissing plaintiff's claim against defendant and remand for further proceedings.

On February 1, 1990, plaintiff and defendant entered into a contract for employment whereby plaintiff would treat defendant's patients. Plaintiff subsequently filed this claim alleging that defendant refused to pay money that was owed under the contract. Defendant filed a counterclaim alleging that plaintiff breached her fiduciary duty to defendant.

Plaintiff moved for summary disposition, arguing that defendant's countercomplaint failed to state a claim upon which relief could be granted. The trial court denied the motion. At the final settlement conference, the parties agreed to a settlement of $14,000, but could not agree to a time frame for payment. The trial court stated that the case would proceed immediately to trial. Because plaintiff was not present, the trial court dismissed the case.

Plaintiff argues that the dismissal of her claim was invalid because she was not afforded notice of the date of trial. We agree. This issue presents a question of law that we review de novo. In re Rupert, 205 Mich.App. 474, 479, 517 N.W.2d 794 (1994). Although the date of the settlement conference and the date of the trial were the same, the trial court made it clear that the dismissal was caused by plaintiff's failure to appear at trial:

Well, it shocks me that the plaintiff does not want to take this $14,000 which is $2,000 above the mediation, over that particular time period.

I do not find that to be unreasonable. However, what I do find to be unreasonable is that this particular date in time is the settlement conference, the attorneys are not willing to resolve this matter.

This case goes to trial. I have talked to plaintiff's counsel and he has informed me that his client is not present. He has been relaying messages of this settlement conference to her by phone.

Since today is the date and time set for trial and she is not present here today, I am going to dismiss this case. Good luck to you.

Generally, due process in civil cases requires notice of the nature of the proceeding. Klco v. Dynamic Training Corp., 192 Mich.App. 39, 42, 480 N.W.2d 596 (1991). In any proceeding involving notice, due process requires that the notice given be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Tempco Heating & Cooling, Inc. v. A Rea Construction, Inc., 178 Mich.App. 181, 189, 443 N.W.2d 486 (1989); Trussell v. Decker, 147 Mich.App. 312, 323, 382 N.W.2d 778 (1985).

MCR 2.501(C) requires that a party be given twenty-eight days' notice of trial. Tempco, supra, 178 Mich.App. at p.189, 443 N.W.2d 486. It is improper to dismiss a case where the required notice was not given. King v. McCullough, 411 Mich. 914 (1981); Bell v. Fuksa, 159 Mich.App. 649, 662, 406 N.W.2d 900 (1987); Flack v. Waite, 18 Mich.App. 339, 340, 170 N.W.2d 922 (1969). However, MCR 2.501(C)(1) provides an exception to the notice requirement if "a rule or statute provides otherwise as to a particular type of action." Here, Wayne Circuit LCR 2.401(A) provides:

A mandatory settlement conference must precede the trial of a civil action. It is to be held immediately before the trial is scheduled to commence....

... If the action is not settled at the settlement conference, trial will commence immediately following the conference unless a trial judge is unavailable.

It is not disputed that plaintiff received adequate notice of the settlement conference. Notice of the settlement conference, taken in conjunction with the local court rule, would satisfy the notice requirement in most cases. MCR 2.501(C)(1); Tempco, supra, 178 Mich.App. at p. 189, 443 N.W.2d 486.

However, notice must be worded in a manner that would not mislead its recipient in deciding how to respond to the notice given. Trussell, supra, 147 Mich.App. at p. 323, 382 N.W.2d 778. Here, the notice that was given was entitled, "Notice of Settlement Conference." This notice provided, in part:

TRIALS:

1. CIVIL ACTIONS

This is not a notice of trial. The trial date will be determined by the assigned judge at the settlement or final pre-trial conference. Bring your scheduling calendar with you to these conferences so that a firm, conflict-free trial date may be set.

2. DIVORCE ACTIONS

This notice will serve as your notice of trial. You are required to be prepared for immediate trial at the conclusion of the settlement conference. [Emphasis in original.]

This notice not only states, but emphasizes, that it is not a notice of trial. In contrast, the section governing divorce actions states explicitly that it is a notice of trial. Moreover, the notice states that its recipients should bring a scheduling calendar to set the date of trial. Under all the circumstances, this notice was misleading and was not reasonably calculated to apprise plaintiff of the pendency of the action. Trussell, supra, at p. 324, 382 N.W.2d 778. Accordingly, it did not satisfy the due process requirement to provide notice of the date of trial. Id. Where a party has not received adequate notice before dismissal of a lawsuit, reinstatement of the case is a matter of right. Belt v. Davis & Randall, Inc., 62 Mich.App. 315, 319, 233 N.W.2d 268 (1975).

Even if plaintiff had received adequate notice of the date of trial, a dismissal here was inappropriate. 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); Zerillo v. Dyksterhouse, 191 Mich.App. 228, 230, 477 N.W.2d 117 (1991). This Court reviews a trial court's decision to dismiss an action under an abuse of discretion standard. Zantop Int'l Airlines, Inc. v. Eastern Airlines, 200 Mich.App. 344, 359, 503 N.W.2d 915 (1993).

Dismissal is a drastic step that should be taken cautiously. Barlow v. John Crane-Houdaille, Inc., 191 Mich.App. 244, 251, 477 N.W.2d 133 (1991). 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. Hanks v. SLB Management, Inc., 188 Mich.App. 656, 658, 471 N.W.2d 621 (1991). Here, because the trial court did not evaluate other available options on the record, it abused its discretion in dismissing the case. Id.; Houston v. Southwest Detroit Hosp., 166 Mich.App. 623, 631, 420 N.W.2d 835 (1987).

Moreover, under these facts, dismissal was inappropriate. Our legal system favors disposition of litigation on the merits. North v. Dep't of Mental Health, 427 Mich. 659, 662, 397 N.W.2d 793 (1986). This Court has summarized some of the factors that a court should consider before imposing the sanction of dismissal: (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 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 N.W.2d 571 (1990). This list should not be considered exhaustive. Id., at p. 33, 451 N.W.2d 571.

Here, it is unclear whether plaintiff's absence at the settlement conference was wilful or accidental. However, plaintiff did not have a history of refusing to comply with previous court orders. Moreover, defendant was not unduly prejudiced by plaintiff's absence. There was no record evidence that plaintiff failed to comply with other parts of the court's order. If plaintiff's...