                           STATE OF MICHIGAN

                            COURT OF APPEALS



G. CLARKE BORGESON,                                               UNPUBLISHED
                                                                  June 14 2017
                Petitioner-Appellant,

v                                                                 No. 332721
                                                                  Tax Tribunal
TOWNSHIP OF NORVELL,                                              LC No. 15-005514-TT

                Respondent-Appellee.


Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.

PER CURIAM.

        Petitioner, G. Clarke Borgeson, appeals as of right the order of the Michigan Tax
Tribunal (Tribunal) dismissing his appeal of the true cash, taxable, and uncapping taxable value
of his real, residential property. The Tribunal dismissed the appeal because Clarke “failed to
appear for a duly-noticed hearing.” We reverse and remand because the Tribunal abused its
discretion in dismissing Clarke’s petition without evaluating other sanction options or
considering the Vicencio1 factors on the record.

                                 I. FACTUAL BACKGROUND

       On September 3, 2014, the United States Bankruptcy Court for the Eastern District of
Michigan ordered that property be conveyed to Clarke and Nancy R. Borgeson. Respondent,
Norvell Township, was the taxing authority.

       Clarke protested the township’s 2015 assessed and taxable value for the property before
the Board of Review. The Board denied Clarke’s petition.




1
    Vicencio v Ramirez, 211 Mich App 501; 536 NW2d 280 (1995).


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       Clarke then filed a property tax appeal petition with the Tribunal’s Small Claims
Division.2 The Tribunal subsequently notified Clarke that it scheduled his case for an in-person
hearing to be held on February 18, 2016.

        After receiving the notice, Clarke sent a letter to the Tribunal asking for “a new hearing
date” because he had a “prepaid vacation” during the scheduled in-person hearing. But the
Tribunal sent Clarke a notice of no action dated December 30, 2015 stating that Clarke’s motion
was not pending, and the Tribunal would not consider the motion because Clarke failed to pay
the required filing fee.

       The Tribunal found that Clarke failed to appear at the February 18, 2016 hearing and
entered an order dismissing his case. Clarke moved for reconsideration, but the Tribunal denied
his motion.

                                 II. SANCTION OF DISMISSAL

       Clarke argues that the Tribunal abused its discretion in dismissing his petition without
evaluating other sanction options or considering the Vicencio factors on the record. We agree.

       We review a Tribunal’s decision to dismiss a petition for failure to comply with the
Tribunal’s orders for an abuse of discretion. Prof Plaza, LLC v Detroit, 250 Mich App 473, 475;
647 NW2d 529 (2002). “An abuse of discretion exists where the result is so palpably and
grossly violative of fact and logic that it indicates a perversity of will, a defiance of judgment, or
the exercise of passion or bias.” Id.

        “Our legal system favors disposition of litigation on the merits.” Vicencio, 211 Mich
App at 507. Accordingly, dismissing an action “is a drastic step that should be taken
cautiously.” Id. at 506. The Tribunal may abuse its discretion when it dismisses a case for a
party’s failure to attend a proceeding. See Stevens v Bangor Twp, 150 Mich App 756, 761-762;
389 NW2d 176 (1986).

        This Court in Vicencio, 211 Mich App at 506, held that a trial court must “carefully
evaluate all available [sanction] options on the record” in order for it to “conclude that the
sanction of dismissal is just and proper.” Further, a trial court “should consider” the following
factors to determine whether a sanction of dismissal is appropriate:

       (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. [Id. at
       507.]


2
 Clarke stated that he did not have a principal residence exemption of at least 50% as of the date
of filing.


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Accordingly, the Vicencio Court concluded that the trial court abused its discretion in dismissing
a case after a plaintiff failed to appear at a settlement conference “because the trial court did not
evaluate other available [sanction] options on the record.” Id. at 506-507. Additionally, this
Court weighed applicable factors and concluded that “dismissal was inappropriate” “under th[e]
facts” of the case. Id. at 507.

        This Court applied Vicencio’s rules to the Tribunal in Grimm v Dep’t of Treasury, 291
Mich App 140, 149-150; 810 NW2d 65 (2010). Specifically, the Grimm Court held that the
Tribunal “should consider” the Vicencio factors before sanctioning a party with dismissal and
that “the record should reflect that the Tax Tribunal ‘gave careful consideration to the factors
involved and considered all [of] its options in determining what sanction was just and proper in
the context of the case before it.’ ” Id., quoting Bass v Combs, 238 Mich App 16, 26; 604 NW2d
727 (1999), overruled in part on other grounds Dimmitt & Owens Fin, Inc v Deloitte & Touche
(ISC), LLC, 481 Mich 618; 752 NW2d 37 (2008).

       In this case, the Tribunal dismissed Clarke’s petition for failing to appear at the scheduled
February 18, 2016 in-person hearing. The Tribunal record before this Court contains no
evidence that the Tribunal evaluated other sanction options or considered the Vicencio factors.
Further, the record is insufficient to facilitate an analysis of the Vicencio factors. Our review on
appeal is limited to the Tribunal record. MCR 7.210(A)(2). Therefore, we conclude that the
Tribunal abused its discretion in dismissing Clarke’s petition without evaluating other sanction
options or considering the Vicencio factors on the record.

                                  III. MOTION TO ADJOURN

        We conclude that the Tribunal complied with TTR 225, the Tribunal did not abuse its
discretion when it found on reconsideration that Clarke failed to comply with TTR 225, and
Clarke abandoned his argument that the Tribunal failed to comply with its website.

         We review for an abuse of discretion a Tribunal’s decision to dismiss a claim for failure
to comply with Tribunal rules, Prof Plaza, LLC, 250 Mich App at 475, and the Tribunal’s ruling
on a motion for reconsideration, see K & W Wholesale, LLC v Dep’t of Treasury, ___ Mich App
___; ___ NW2d ___ (2017) (Docket No. 327107), slip op 3 (addressing a trial court’s decision
on a motion for reconsideration). But the issue of whether Clarke complied with the Tribunal’s
website when filing his motion to adjourn was not preserved. Gen Motors Corp v Dep’t of
Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010). Therefore, we review this claim for
plain error. Henderson v Dep’t of Treasury, 307 Mich App 1, 9; 858 NW2d 733 (2014). Plain
error occurs when there is (1) error (2) that was plain and (3) “ ‘affected [petitioner’s] substantial
rights.’ ” Id., quoting People v Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011).

       The Tax Tribunal Act, MCL 205.701 et seq., gives the Tribunal the power to create rules
to implement the Act. Its “powers include” creating “rules for practice and procedure before the




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tribunal . . . under the administrative procedures act” (APA). MCL 205.732.3 The Michigan
Administrative Code, MCL 24.259(1), publishes all Tribunal rules under part two of the
Administrative Hearing Rules, Mich Admin Code, R 792.10201, et seq.

        Subpart C of the Tribunal rules governs matters before the Small Claims Division. Mich
Admin Code, R 792.10261. Subpart C explains that if a specific small claims rule does not exist,
“the entire tribunal rules govern.” Rule 792.10261. Subpart C has no rule governing motions.
Therefore, TTR 225, Mich Admin Code, R 792.10225, under the rules before the entire tribunal
outlines the rules for filing motions.

        Under TTR 225, all requests requiring an order must be made by written motion and
include the appropriate filing fee. A motion to adjourn filed in the Small Claims Division has a
$25 filing fee. See Mich Admin Code, R 792.10267(3)(k) (requiring a $25 filing fee for all types
of motions not specifically listed). The Tribunal must “issue a notice of no action” if the motion
does not include the correct filing fee or if the Tribunal cannot determine whether the movant
paid the fee. Rule 792.10225(2). The rule further requires the Tribunal to take “action” on the
motion “[i]f the appropriate fee is paid within 21 days of the issuance of the notice of no action
or as otherwise provided by the tribunal.” Rule 792.10225(2).

        In this case, the Tribunal complied with TTR 225. Clarke filed a motion to adjourn the
February 18, 2016 in-person hearing via a letter dated December 17, 2015. The record contains
no evidence that Clarke included a $25 filing fee. Accordingly, the Tribunal issued a notice of
no action dated December 30, 2015, directing Clarke to file the fee. The record contains no
evidence that Clarke paid the fee for his motion to adjourn.4 Therefore, the Tribunal was not
required to take action on his motion. See Rule 792.10225(2). The Tribunal should not grant
Clarke a new hearing on this basis, and the Tribunal did not abuse its discretion when it found in
its motion for reconsideration that Clarke failed to comply with TTR 225.

        Clarke also argued that the Tribunal’s website indicated that it could grant a motion to
adjourn if the Tribunal received the request at least 21 days before the scheduled hearing and
found good cause for the adjournment. Petitioners “may not merely announce their position and
leave it to this Court to discover and rationalize the basis for their claims” or “give issues cursory
treatment with little or no citation of supporting authority.” VanderWerp v Plainfield Charter
Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). Clarke cites no authority supporting his


3
 The Tribunal is an administrative agency whose procedures are governed by the APA, MCL
24.201 et seq. MCL 24.203(2); MCL 205.721.
4
  Rather, the record suggests that Clarke submitted a fee for a different motion. Clarke filed a
motion on December 30, 2015 asking the Tribunal to grant default judgment in his favor. But
the Tribunal sent Clarke a notice of no action dated January 5, 2016, noting that he failed to
include the appropriate fee. Clarke filed a proof of service on January 6, 2016, attaching the
January 5, 2016 notice of no action and indicating that he submitted a filing fee to the Tribunal.
The proof of service indicates that Clarke also served “Grass Lake Charter Township.” It is
unclear how Grass Lake Charter Township is involved in this case.


                                                 -4-
claim that the Tribunal was bound to follow its website instead of TTRs 225 and 267. Clarke’s
motion to adjourn did not comply with TTRs 225 and 267. And Clarke did not argue on appeal
that the Tribunal did find or should have found good cause to grant his motion. Therefore,
Clarke abandoned this claim. See VanderWerp, 278 Mich App at 633.

                                      IV. DUE PROCESS

        Finally, Clarke argues that the Tribunal deprived him of his fundamental due process
rights to notice and a meaningful opportunity to be heard before an impartial decision-maker.
Clarke failed to preserve this claim. Therefore, we review it for plain error. Henderson, 307
Mich App at 9. The Tribunal did not plainly err here.

       The United States and Michigan Constitutions prevent the government from depriving a
person of property without due process. US Const, Am XIV; Const 1963, art 1, § 17.
Accordingly, real property owners have due process protections when the government assesses
and collects property taxes. Spranger v City of Warren, 308 Mich App 477, 482-483; 865 NW2d
52 (2014). Due process requires “notice,” id., “an opportunity to be heard in a meaningful time
and manner,” id., and “an unbiased and impartial” decision-maker, Cain v Dep’t of Corrections,
451 Mich 470, 497; 548 NW2d 210 (1996).

       In this case, the Tribunal provided Clarke with an opportunity to be heard on his petition
in a meaningful time and manner. It scheduled an in-person hearing for February 18, 2016. The
Tribunal notified him of the hearing. But Clarke did not show up.

        Clarke’s claim that the Tribunal violated his due process rights when it failed to notify
him whether his motion to adjourn was granted or denied lacks merit. When Clarke sent the
Tribunal a written request for a new hearing, the Tribunal informed Clarke that his motion to
adjourn was not pending and that the Tribunal would not consider his motion because Clarke
failed submit the appropriate filing fee. The Tribunal did not plainly err in failing to rule on a
motion that was not properly pending before it. See Henderson, 307 Mich App at 9.

       Clarke abandoned his claim that the Tribunal denied him a meaningful opportunity to be
heard before an impartial decision-maker. Clarke did not explain how any decision-maker acted
impartially. Clarke “may not merely announce [his] position and leave it to this Court to
discover and rationalize the basis for [his] claim[].” See VanderWerp, 278 Mich App at 633.

       We reverse and remand. On remand, the Tribunal should consider the other sanction
options as well as the Vicencio factors. We do not retain jurisdiction.

                                                            /s/ Brock A. Swartzle
                                                            /s/ Henry William Saad
                                                            /s/ Peter D. O’Connell




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