                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 16, 2017
               Plaintiff-Appellee,

v                                                                    No. 329353
                                                                     Shiawassee Circuit Court
ETHAN THOMAS SMITH,                                                  LC No. 15-007329-FH

               Defendant,
and

TIMOTHY H. HAVIS and MICHELLE L.
SHANNON,

               Appellants.


Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

       Appellants represented defendant in a criminal case. Before trial, the trial court entered
an order requiring appellants to pay $1,000 each in sanctions for failing to follow the trial court’s
scheduling order. Appellants appeal the order for sanctions as of right. We vacate the sanctions
order and remand for further proceedings consistent with this opinion.

                                             I. FACTS

       Plaintiff charged defendant with one count of assault by strangulation, MCL
750.84(1)(b), and one count of assault with intent to do great bodily harm less than murder, MCL
750.84. The victim was defendant’s wife. In August 2015, appellants filed appearances on
defendant’s behalf. Simultaneously with her appearance, Shannon sought discovery under MCR
6.201, asking for the “[n]ames and addresses of all witnesses, lay or expert, . . . including all res
gestae witnesses.” Plaintiff responded by filing a res gestae and trial witness list on May 13,
2015.

        The trial court entered a pretrial scheduling order on May 28, 2015. Significantly, it set
August 13, 2015 as the “Motion Cut-Off Date,” requiring “[a]ll motions . . . to be . . . filed and
heard by no later than . . . August 13, 2015.” To meet this deadline, the trial court stated that
“[a]ll motions [must] be . . . scheduled six to eight weeks in advance.” The trial court also

                                                -1-
ordered “the parties . . . to exchange lists of . . . witnesses as set forth in MCL 767.40a.” Trial
was scheduled to begin September 1, 2015.

        Plaintiff filed an amended witness list with the trial court, and served Shannon with that
list, on July 29, 2015. Significantly, plaintiff added Justin Allen to the witness list. The next
day, plaintiff filed a MCL 768.27b notice with the trial court, and served it upon Shannon,
indicating that it “intend[ed] to introduce evidence of defendant’s commission of other acts of
domestic violence.” Plaintiff claimed that defendant had previously “assaulted” the victim on
March 25, 2012, that Allen “walked in [ ]on the altercation,” “pull[ed] . . . defendant from” the
victim, and helped her escape.

        Defendant then objected to plaintiff’s MCL 768.27b notice, arguing that plaintiff
provided no contact information for Allen and that an evidentiary hearing was required to assess
the accuracy of Allen’s testimony. Defendant also asked for a ruling on the admissibility of the
MCL 768.27b evidence “well before trial” so that defendant had a “reasonable opportunity to
locate and subpoena” rebuttal witnesses. Defendant then filed a witness list on August 31, 2015,
adding Merry Smith, Josephine Pine, and “[r]ebuttal witnesses as needed.” Defendant asserted
that he could file a late witness list so long as it was in “the best interest of justice.”

       After a hearing, the trial court found that plaintiff submitted its MCL 768.27b notice in a
timely manner, both under the statute and pursuant to the scheduling order. The trial court also
concluded that the prior, alleged act was less than “10 years old” and was similar enough to the
charged act to be probative, that defendant’s arguments about Allen’s testimony go “more to
weight than admissibility,” and that the evidence was admissible under MRE 403 because it
would cause no “unfair” prejudice to defendant.

        Turning to defendant’s compliance with its scheduling order and court rules, the trial
court noted that defendant had not yet properly filed its witness list. The trial court pointed out
that MCR 6.201(F) required defendant to disclose witnesses by June 5, 2015, that its own
scheduling order did not modify this deadline, and that MCL 767.94a required defendant to file
its witness list “ ‘not later than 10 days prior to trial,’ ” which was scheduled for September 1,
2015. Therefore, the trial court concluded, defendant failed to comply with both the court rules
and the court’s scheduling order. Further, the trial court stated that defendant did not “file[ ] a
motion to add additional witnesses” and failed to “demonstrate[ ] good cause for fail[ing] to
comply with the court rules.”

        The trial court indicated it would not exercise its “discretion to allow late-filed
witnesses.” Instead, the trial court adjourned trial until September 15, 2015, and required
defendant to “submit a Witness List within 5 days,” including “names and contact information
for each witness the [d]efense intends to call in either its case in chief or in rebuttal.”

        The trial court characterized defendant’s “disclosures” as “late” and stated that it had the
“authority to fashion a remedy for discovery violations” and to order “sanctions for willful
violation[s] of discovery rule[s]” pursuant to MCR 6.201(J). Explaining that appellants “fail[ed]
to follow the [trial court’s] scheduling order,” the trial court ordered each to pay a $1,000
sanction.


                                                -2-
                                            II. ANALYSIS

        Appellants argue that the trial court lacked authority in this instance to order sanctions.
This Court reviews for an abuse of discretion trial court sanction orders entered pursuant to MCR
6.201(J). People v Jackson, 292 Mich App 583, 591; 808 NW2d 541 (2011). “An abuse of
discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Id.

        According to MCR 2.401(B)(1)(c),1 a trial court may enter a scheduling order “setting
time limitations for the processing of the case and establishing dates when future actions should
begin or be completed in the case.” MCR 2.401(B)(2)(a) further provides that the court “shall
establish times for events the court deems appropriate[.]” It is within a trial court’s discretion “to
decline to entertain actions beyond the agreed time frame.” People v Grove, 455 Mich 439, 469;
566 NW2d 547 (1997).2 “Were the rules not so construed, scheduling orders would quickly
become meaningless.” Id.

        “MCR 6.201 governs and defines the scope of criminal discovery.” People v Greenfield,
271 Mich App 442, 447; 722 NW2d 254 (2006).3 If a party violates the court rule, a trial court
has “discretion” “to provide the discovery or permit the inspection of materials not previously
disclosed, grant a continuance, prohibit the party from introducing in evidence the materials not
disclosed, or enter such other order as it deems just.” MCR 6.201(J). And, if a party commits a
“[w]ilful violation . . . of an applicable discovery rule or an order issued pursuant thereto,” a trial
court “may subject counsel to appropriate sanctions.” MCR 6.201(J).

        The trial court’s pretrial scheduling order required “the parties . . . to exchange lists of . . .
witnesses as set forth in MCL 767.40a.” Appellants argue that MCL 767.40a only requires
plaintiff—not defendant—to disclose witnesses. But even if the trial court did not have the
authority to sanction appellants for failing to follow MCL 767.40a, defendant and his attorneys


1
  The rules of civil procedure apply in criminal proceedings unless (1) provided otherwise by the
rules, (2) it clearly appears that the rule(s) apply only to civil proceedings, or (3) a statute or
court rule provides for a like or different procedure. MCR 6.001(D).
2
 We recognize that in People v Franklin, 491 Mich 916; 813 NW2d 285 (2012), our Supreme
Court stated that, “Grove has been superseded by MCR 6.310(B).” However, that subrule
applies to a request to withdraw a plea, which was not at issue in this case.
3
   At the hearing, in explaining its rationale for ordering sanctions, the trial court stated that
pursuant to MCR 6.201(J) it had the “authority to fashion a remedy for discovery violations,”
including imposing sanctions, for what it characterized as appellants’ willful violation of
discovery rules. However, the trial court’s written order imposing sanctions states that
appellants were sanctioned for “failing to follow the [trial] court’s scheduling order.” Though
there is little difference between the oral ruling and written order, our analysis is focused on the
trial court’s written order, as it is well-established that a “trial court speaks through its written
orders.” People v Davie (After Remand), 225 Mich App 594, 600; 571 NW2d 229 (1997).


                                                   -3-
were obligated to follow that order until it was overturned or vacated. This holds true even if
there is a legitimate question regarding whether the trial court could enforce the statute against
defendant.4 We said as much in In re Contempt of Dudzinski, 257 Mich App 96, 110; 667 NW2d
68 (2003), where we held, quoting Kirby v Michigan High School Athletic Ass’n, 459 Mich 23,
40; 585 NW2d 290 (1998), that “ ‘[a] party must obey an order entered by a court with proper
jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being held in
contempt and possibly being ordered to comply with the order at a later date.’ ” As we held in In
re Dudzinski, a party is not entitled to ignore or disobey a court order simply on the belief that
the order was invalid and would be overturned on appeal:

       Civil disobedience is not the appropriate course of action when a person disagrees
       with a court order. We are a society of laws and the legal remedy available to
       appellant was to seek leave to appeal the trial court's order precluding him from
       wearing his shirt. Appellant elected not to pursue his legal remedy, and instead
       elected to willfully disobey a valid albeit erroneous court order. A person may
       not disregard a court order simply on the basis of his subjective view that the
       order is wrong or will be declared invalid on appeal. Allowing such behavior
       would encourage noncompliance with valid court orders on the basis of
       misguided subjective views that the orders are wrong. There exists no place in
       our justice system for self-help. [In re Dudzinski, 257 Mich App at 111.]

Consequently, we need not decide whether the trial court had the authority to require defendant
to comply with MCL 767.40a, and instead turn our attention to whether the sanctions ordered
were an abuse of discretion. We conclude that they were.

         We review the amount of the sanctions ordered for an abuse of discretion, In re Costs and
Attorney Fees, 250 Mich App 89, 104; 645 NW2d 697 (2002), and for several reasons we
conclude that the amount ordered was well outside the range of reasonable and principled
outcomes.5 First, the violation was tardy compliance with the scheduling order’s witness list
requirements. But, as the Court recognized in People v Burwick, 450 Mich 281, 298; 537 NW2d
813 (1995), “where a continuance can accomplish both objectives [enhancing the reliability of
the fact finding process and providing enough time to meet the proofs], it serves administrative
efficiency and is the remedy of choice.” Here, the trial court did adjourn trial to allow defendant
to file his witness list and give the prosecutor time to prepare in light of the list, which satisfied
both statutory objectives. Typically that remedy would be sufficient.



4
 See Greenfield, 271 Mich App at 447-449 (Courts can only require the discovery allowed for
within MCR 6.201).
5
  “When determining the appropriate remedy for discovery violations, the trial court must
balance the interests of the courts, the public, and the parties in light of all the relevant
circumstances, including the reasons for noncompliance.” People v Banks, 249 Mich App 247,
252; 642 NW2d 351 (2002). Further, the complaining party must show that the violation caused
him or her actual prejudice. Davie (After Remand), 225 Mich App at 598.


                                                 -4-
        Second, “[a]n appellate court cannot review a decision for abuse of discretion unless it
knows how and why the discretionary decision was made.” Houston v Southwest Detroit
Hospital, 166 Mich App 623, 631; 420 NW2d 835 (1987). Here, the trial court never explained
why it chose $1,000 per attorney as the appropriate amount, making it difficult for us to review
this discretionary decision. Third, as the trial court recognized, there was little prejudice to the
prosecution’s trial preparation in light of the trial court’s adjournment of trial and defendant’s
filing of a witness list containing only two names additional to those contained on the
prosecutor’s list. People v Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002). Fourth,
although we recognize the trial court’s need to ensure compliance with its orders and to order
some additional remedy beyond the adjournment, a $2,000 sanction for this singular violation
that resulted in minimal prejudice to the court or the prosecutor, was—absent any explanation for
the amount—outside the range of principled outcomes. The significant amount went beyond
acting as an additional remedy. Instead, and in light of the minimal violation that occurred and
without further explanation, it appeared more punitive in nature and disproportionate to the
violation. For these reasons we vacate the order and remand for the trial court to reassess the
amount of sanctions in light of this opinion.

        Order vacated and remanded for further proceedings consistent with this opinion. We do
not retain jurisdiction.



                                                             /s/ Peter D. O’Connell
                                                             /s/ Jane E. Markey
                                                             /s/ Christopher M. Murray




                                                -5-
