                           STATE OF MICHIGAN

                             COURT OF APPEALS



TRACEY SMITH,                                                          UNPUBLISHED
                                                                       March 22, 2018
               Plaintiff-Appellant,

v                                                                      No. 337145
                                                                       Genesee Circuit Court
FLINT CHILDREN’S MUSEUM,                                               LC No. 16-107699-CD

               Defendant-Appellee.


Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order dismissing her complaint, without
prejudice. We affirm.

       In this wrongful termination and racial discrimination action, this Court is asked to
determine whether (1) the trial court abused its discretion by dismissing plaintiff’s complaint,
and (2) whether it was plain error for the trial court to impose sanctions on plaintiff, by way of a
$750 fine, for failing to appear at her “premature” deposition.

        First, plaintiff contends that the trial court abused its discretion by dismissing her
complaint, without prejudice, upon defendant’s motion. This Court reviews a trial court’s
decision to impose discovery violation sanctions, including dismissing a pending action, for an
abuse of discretion. Jilek v Stockson (On Remand), 297 Mich App 663, 665; 825 NW2d 358
(2012). “An abuse of discretion occurs when the [trial court’s] decision results in an outcome
falling outside the range of principled outcomes.” Id. (quotation marks and citation omitted).
Further, any findings of fact underlying a trial court’s decision are reviewed for clear error.
Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 660; 819 NW2d 28 (2011). “A finding is
clearly erroneous when this Court is left with a definite and firm conviction that a mistake has
been made.” Id. (quotation marks and citation omitted).

        As an initial matter, we note that plaintiff fails to cite any statutes, court rules, or caselaw
to support her arguments on appeal. Instead, plaintiff argues that the trial court erroneously
dismissed her claim without first hearing her evidence, and that she was treated poorly because
she was not represented by counsel. “An appellant may not merely announce [her] position and
leave it to this Court to discover and rationalize the basis for [her] claims, nor may [she] give
only cursory treatment with little or no citation of supporting authority.” Kubicki v Mtg
Electronic Registration Sys, 292 Mich App 287, 291; 807 NW2d 433 (2011) (quotation marks
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and citation omitted). Therefore, plaintiff has essentially abandoned her arguments on appeal.
Regardless, we will address the merits of her argument.

        Michigan jurisprudence has long recognized that “trial courts possess the inherent
authority to sanction litigants and their counsel, including the power to dismiss an action,” in
order to “direct and control the proceedings before them.” Maldonado v Ford Motor Co, 476
Mich 372, 376; 719 NW2d 809 (2006). Further, the Michigan Court Rules account for several
circumstances where a trial court may sanction a plaintiff by dismissing the complaint. See
MCR 2.504(B)(1), which provides that if a “party fails to comply with [the court rules] or a court
order, upon motion by an opposing party, or sua sponte, the court may enter a default against the
noncomplying party or a dismissal of the noncomplying party’s action or claims;” MCR
2.313(B)(2)(c), which provides that if a party fails to, inter alia, permit discovery or obey an
order, the trial court may dismiss the action; MCR 2.313(D)(1), which permits a trial court to
impose sanctions, including dismissal of an action, if a party fails to appear for their deposition
after being served with proper notice, or fails to serve answers or objections to written discovery
after being served with proper notice.

         When determining whether to impose any sanction, including the dismissal of an action,
the trial court should carefully consider:

       (1) whether the violation [of a court order] was wilful or accidental; (2) the
       party’s history of refusing to comply with discovery requests (or refusal to
       disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the
       defendant of the witness [(if the issue involves witness lists)] and the length of
       time prior to trial that the defendant received actual notice; (5) whether there
       exists a history of plaintiff’s engaging in deliberate delay; (6) the degree of
       compliance by the plaintiff with other provisions of the court’s order; (7) an
       attempt by the plaintiff to timely cure the defect, and (8) whether a lesser sanction
       would better serve the interests of justice.” [Dean v Tucker, 182 Mich App 27,
       32-33; 451 NW2d 571 (1990) (citations omitted).]

Dismissal of an action is “the harshest sanction that the [trial] court may impose on a plaintiff,”
Donkers v Kovach, 277 Mich App 366, 369; 745 NW2d 154 (2007) (quotation marks and
citation omitted), and should be “exercised cautiously” after engaging in “a consideration of the
circumstances of each case to determine if such a drastic sanction is appropriate,” Dean, 182
Mich App at 32.

        Although not explicitly mentioned, the record is clear that the trial court considered the
Dean factors when deciding to sanction plaintiff by dismissing her complaint. The trial court
acknowledged that plaintiff had been noncompliant with three of its previous orders, and that it
had warned plaintiff of the consequences of her noncompliance. Further, the trial court inquired
as to whether plaintiff had paid a fine previously imposed on her for failing to comply with a
court order. The trial court explained that it was unfair for defendant to continue to pay its
attorneys to defend plaintiff’s action when plaintiff would not cooperate with court orders.
Finally, we note the trial court dismissed plaintiff’s complaint without prejudice, in order for
plaintiff to be able to refile her complaint in the future. Based on the foregoing, we cannot
conclude that it was outside the range of principled outcomes for the trial court to dismiss

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plaintiff’s complaint for failure to comply with its orders, and for a failure to complete discovery.
Maldonado, 476 Mich at 376; MCR 2.313(B)(2)(c); MCR 2.313(D)(1); MCR 2.504(B)(1).

        Plaintiff next argues that the trial court committed error requiring reversal by ordering her
to pay $750 to defense counsel. An issue is properly preserved for appeal if it has been raised,
addressed, and decided in the trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999). Plaintiff moved, in the trial court, to “reverse” the order sanctioning her by
requiring her to pay defense counsel $750. The trial court heard oral arguments from all parties,
however plaintiff attempted to re-argue previous motions, and failed to address why she should
not have been sanctioned in the amount of $750. Likewise, the trial court did not rule on
plaintiff’s motion on the record, and it is not addressed in the order from which plaintiff appeals.
The only mention of the sanctions imposed by the trial court was an inquiry made to defense
counsel regarding whether plaintiff had yet paid. Because the trial court never ruled on
plaintiff’s request to reverse its order imposing sanctions, this issue is unpreserved.

        This Court is not required to address unpreserved issues, however, “it may overlook
preservation requirements when the failure to consider an issue would result in manifest
injustice, if consideration is necessary for a proper determination of the case, or if the issue
involves a question of law and the facts necessary for its resolution have been presented.” Gen
Motors Corp v Dep’t of Treasury, 290 Mich App 355, 387; 803 NW2d 698 (2010). However,
because this issue is unpreserved through no fault of plaintiff, we will address it on the merits.

       This Court generally reviews a trial court’s decision to impose discovery violation
sanctions for an abuse of discretion, Jilek, 297 Mich App at 665, and any findings of fact
underlying the trial court’s decision to impose sanctions are reviewed for clear error, Hardrick,
294 Mich App at 660. However, unpreserved issues are reviewed for plain error. Richard v
Schneiderman & Sherman, PC (On Remand), 297 Mich App 271, 273; 824 NW2d 573 (2012).

        Again, plaintiff fails to cite any statutes, court rules, or case law to support her argument
that the trial court erroneously sanctioned her by imposing a $750 fine. Because an “appellant
may not merely announce [her] position and leave it to this Court to discover and rationalize the
basis for [her] claims, nor may [she] give only cursory treatment with little or no citation of
supporting authority,” Kubicki, 292 Mich App at 29 (quotation marks and citation omitted), this
argument is also abandoned. Regardless, we will address plaintiff’s argument on the merits.

        As noted, the trial court has the authority to impose sanctions on a noncompliant party,
including fines, in order to “direct and control the proceedings before them.” Maldonado, 476
Mich at 376. The record reflects that the trial court “considered all of its options in determining
what sanction was just and proper” given the circumstances of the case before it. Dean, 182
Mich App at 32. Although defendant requested plaintiff’s complaint be dismissed, the trial court
chose a lesser sanction, a $750 fine, to cover defendant’s cost of bringing its motion. The trial
court expressed concern that plaintiff did not understand the seriousness of what was required of
her, and explained to plaintiff that she was required to follow court rules and court orders. The
trial court informed plaintiff that if she could not make the date and time of her court ordered
deposition, she needed to file something in the trial court, rather than providing a doctor’s note to
defense counsel. Finally, the trial court allowed plaintiff one last opportunity to complete written


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discovery and to sit for her deposition. Based on the foregoing, the trial court did not plainly err
in sanctioning plaintiff by way of a $750 fine.

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




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