            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



CARING 4 LOVED ONES, INC.,                                         UNPUBLISHED
                                                                   March 28, 2019
              Plaintiff-Appellant,

and

LENEA HARDIMAN,

              Intervening Plaintiff,

v                                                                  No. 341217
                                                                   Oakland Circuit Court
AUTO CLUB INSURANCE ASSOCIATION,                                   LC No. 2016-155753-NF

              Defendant-Appellee.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

     Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition under MCR 2.116(C)(8). We reverse and remand.

                                           I. FACTS

        Plaintiff, Caring 4 Loved Ones, Inc., is a healthcare service provider owned and operated
by intervening plaintiff Lenea Hardiman. Since 1987, plaintiff has provided nursing and
attendant care for sisters Loralee and Amy Ruth Cooper after both girls were left disabled as a
result of severe brain injuries sustained in a car accident. On December 21, 2016, after the
Coopers’ mother passed away, Hardiman petitioned for and was granted legal guardianship of
the sisters.

        On October 27, 2016, plaintiff initiated the present action against the Coopers’ insurer,
defendant Auto Club Insurance Association, seeking to recover no-fault personal injury
protection benefits (PIP benefits) allegedly owed for plaintiff’s services. On June 28, 2017,
defendant filed a motion for summary disposition under MCR 2.116(C)(8), on the basis of our
Supreme Court’s May 25, 2017, holding in Covenant Med Ctr, Inc v State Farm Mut Auto Ins


                                               -1-
Co, 500 Mich 191, 195; 895 NW2d 490 (2017), that healthcare providers do not have an
independent statutory right to bring an action against an insurer for payment of no-fault benefits.
Accordingly, defendant argued that plaintiff lacked standing to proceed with its action against
defendant. Ultimately, on August 4, 2017, the trial court granted defendant’s motion for
summary disposition on the basis of Covenant and dismissed plaintiff’s suit for no-fault benefits.

         Before the trial court dismissed plaintiff’s action, Hardiman filed a motion to intervene in
the action as a party plaintiff, which the trial court granted on August 3, 2017. Hardiman
brought the intervening complaint, which was largely identical to plaintiff’s complaint, in her
capacity as the Coopers’ legal guardian and sought payment by defendant of first-party, no-fault
PIP benefits. On August 10, 2017, defendant moved for summary disposition under MCR
2.116(C)(8) with respect to Hardiman’s intervening complaint. On August 17, 2017, Hardiman
filed a first amended intervening complaint as a matter of right under MCR 2.118(A)(1). The
first amended intervening complaint was identical to the original complaint with the exception
that it corrected the date on which Hardiman became the Coopers’ legal guardian. On August
22, 2017, defendant re-filed its motion for summary disposition with respect to the first amended
intervening complaint.

       On August 17, 2017, plaintiff filed a motion for reconsideration of the trial court’s order
dismissing its complaint. Plaintiff argued that, although healthcare providers have no standing to
pursue no-fault benefits under Covenant, plaintiff acquired the Coopers’ claim to benefits
through an Assignment of Rights agreement executed by Hardiman, as the sisters’ legal
guardian, on June 29, 2017. Plaintiff therefore requested that the trial court amend its previous
order of dismissal in order to grant plaintiff the opportunity to file an amended complaint under
MCR 2.116(I)(5). On October 13, 2017, the trial court granted plaintiff’s motion for
reconsideration and directed plaintiff to file an amended complaint by October 18, 2017.

        On October 17, 2017, one day before plaintiff’s amended complaint was to be filed with
the trial court, Hardiman filed a document entitled “Second Amended Intervening Complaint,”
which included allegations concerning Hardiman’s assignment to plaintiff of the right to pursue
collection of first-party no-fault benefits. Though the preamble of the second amended
intervening complaint indicated it was submitted solely by Hardiman, the substance was pleaded
and relief was requested jointly on behalf of both Hardiman and plaintiff.

       On October 30, 2017, the trial court sua sponte entered an order striking the second
amended intervening complaint pursuant to MCR 2.115(B) on the ground that it was filed
without leave in violation of MCR 2.118(A)(2). Additionally, the trial court entered a separate
order on October 30, 2017, granting defendant’s motion for summary disposition with respect to
Hardiman’s first amended intervening complaint. The trial court found that, as a healthcare
provider, Hardiman had no statutory cause of action against defendant under Covenant. In
dismissing Hardiman’s first amended intervening complaint in its entirety, the order stated that it
resolved the last pending matter and closed the case, providing the following footnote:

               The Court notes that, although the Court granted [plaintiff’s] Motion for
       Reconsideration of the Opinion and Order dated August 4, 2017 granting
       Defendant’s Motion for Summary Disposition for the limited purpose of allowing
       [plaintiff] to file a First Amended Complaint against Defendant herein (see Order

                                                -2-
       dated October 13, 2017), [plaintiff] failed to file said First Amended Complaint as
       ordered by the Court by October 18, 2017. Consequently, there being no other
       pending matters before this Court, this Order resolves the last pending claim and
       closes the case.

        On November 1, 2017, Hardiman moved for clarification and to set aside the trial court’s
order striking the second amended intervening complaint. Specifically, Hardiman argued that
plaintiff1 timely filed the second amended intervening complaint in accordance with the trial
court’s October 13, 2017, order granting plaintiff’s motion for reconsideration. On November 2,
2017, the trial court denied this motion, finding that Hardiman relied upon a court order
“permitting [plaintiff] to file a First Amended Complaint, not [Hardiman].”

        On November 6, 2017, plaintiff moved for leave to file an amended complaint. In its
motion, plaintiff noted that the trial court denied its previous motion for clarification on the
ground that plaintiff mistakenly and erroneously amended the intervening complaint.
Consequently, plaintiff sought leave to correct its error and to submit the appropriate amended
complaint. On November 11, 2017, the trial court denied plaintiff’s motion for lack of
jurisdiction, as the trial court had already entered a final order resolving the last pending claim
and closing the case.

       Plaintiff now appeals from the trial court’s October 30, 2017, order dismissing plaintiff’s
claim and closing the case. According to plaintiff, the second amended intervening complaint
was timely filed and, in substance, precisely complied with the trial court’s October 13, 2017,
order. However, plaintiff maintains it made a simple clerical error by amending the intervening
complaint rather than the original complaint, a minor error that easily could have been corrected
had the trial court explained its basis for striking the second amended intervening complaint and
dismissing all claims.

                                         II. ANALYSIS

        On appeal, plaintiff argues that the trial court abused its discretion by dismissing the
action sua sponte after determining that plaintiff failed to comply with the order imposing a
deadline by which to file an amended complaint. After initially dismissing plaintiff’s complaint
for failure to state a claim under MCR 2.116(C)(8), the trial court granted plaintiff’s motion for
reconsideration and permitted plaintiff an opportunity to amend its complaint, in accordance with
MCR 2.116(I)(5) (“If the grounds asserted [for summary disposition] are based on subrule
(C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as
provided by MCR 2.118, unless the evidence then before the court shows that amendment would
not be justified”). Due to a misnomer in the title and preamble of plaintiff’s amended complaint,
the trial court determined that plaintiff failed to timely file an amended complaint. However,
there is no provision in either MCR 2.116 or 2.118 permitting a trial court sua sponte to dismiss


1
  Although Hardiman, and not plaintiff, technically filed the motion for clarification, the
substance of the motion treated Hardiman and plaintiff collectively and clearly sought relief on
behalf of plaintiff.


                                                -3-
an action for failure to timely file amendments to a complaint in accordance with a deadline
arbitrarily imposed by a trial court. Thus, the trial court’s authority to dismiss plaintiff’s action
is necessarily derived from MCR 2.504(B)(1), which permits a trial court to dismiss an action,
upon motion by an opposing party or sua sponte, if a party fails to comply with either the
Michigan Court Rules or a court order.

       This Court reviews for an abuse of discretion a trial court’s dismissal of an action under
MCR 2.504(B)(1) for failure to comply with a court order. Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006). The abuse of discretion standard recognizes that the
circumstances of a case may present more than one reasonable and principled outcome. Id. “An
abuse of discretion occurs when the trial court chooses an outcome falling outside the principled
range of outcomes.” Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256,
258; 739 NW2d 121 (2007).

        Dismissal under MCR 2.504(B)(1) is a “drastic step” that must be imposed with caution,
as our legal system favors the disposition of actions on the merits. Vicencio v Ramirez, 211
Mich App 501, 506-507; 536 NW2d 280 (1995). Therefore, before imposing the sanction of
dismissal, the trial court must “carefully evaluate all available options on the record and
conclude that the sanction of dismissal is just and proper.” Id. at 506. In evaluating whether a
trial court abused its discretion by dismissing an action for failure to comply with a court-
imposed deadline by which to file an amended complaint, this Court has specifically considered
the following factors:

       (1) whether the violation was willful 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.
       [Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 631; 750 NW2d 228 (2008)
       (quotation marks and citation omitted).]

        In the present case, the trial court abused its discretion by failing to consider less extreme
sanctions than dismissal. Moreover, although the trial court did not examine the factors
enumerated above, it is plain that these factors do not support the drastic sanction of dismissal.
First, plaintiff’s failure to file an amended complaint was accidental and not willful. Given the
close relationship between plaintiff and Hardiman, plaintiff’s owner, the line between these
parties inadvertently became blurred in the filings made by their shared attorney. The record
indicates that plaintiff’s and Hardiman’s counsel filed an amended complaint on October 17,
2017, by the deadline imposed by the trial court, but mistitled it an intervening complaint and
mistakenly omitted plaintiff from the preamble. However, this amended complaint was correctly
captioned2 and was pleaded and requested relief jointly on behalf of both plaintiff and Hardiman


2
  Plaintiff and Hardiman were parties to the same action, to which the trial court assigned a
single case number. Thus, the amended complaint filed on October 17, 2017, was properly
captioned with the correct case number.


                                                 -4-
against the same defendant. Further, the substance of the amended complaint included
allegations regarding the assignment-based theory of recovery proposed in plaintiff’s motion for
reconsideration. Thus, the record demonstrates that the defects in the amended complaint’s title
and preamble were simply the product of trial counsel’s inadvertence and not willfulness.

        Second, the record does not demonstrate any history on plaintiff’s part of deliberate delay
or refusal to comply with the trial court’s orders. Indeed, aside from the defects in the title and
preamble of the amended complaint, plaintiff otherwise complied with the trial court’s order
granting its motion for reconsideration by timely filing the amended complaint and by limiting
the amendments to its assignment-based theory of recovery. Additionally, plaintiff filed timely
responses to defendant’s motions and timely sought reconsideration of the trial court’s initial
dismissal of its complaint. The record is also devoid of any motions alleging that plaintiff failed
to comply with a court order.

        Third, the record indicates that plaintiff’s counsel, through filings made on behalf of both
plaintiff and Hardiman, made numerous and timely attempts to cure the defect. Plaintiff
maintains that when the trial court entered its October 30, 2017, order dismissing plaintiff’s
claim, counsel immediately made contact with the trial court’s clerk’s office in an effort to
resolve any issues. Two days later, on November 1, 2017, Hardiman filed a motion for
clarification and to set aside the order of dismissal. On November 6, 2017, four days after the
trial court denied Hardiman’s motion for clarification, plaintiff filed a motion for leave to file its
amended complaint.

        Fourth, defendant suffered no prejudice as a result of plaintiff’s error. From the outset,
both plaintiff and Hardiman asserted nearly identical claims in the same action against the same
defendant. Defendant was made aware of the substance of plaintiff’s proposed amendments to
its complaint in plaintiff’s motion for reconsideration, and the amended complaint filed on behalf
of plaintiff was consistent with the theory advanced in the motion. Thus, defendant could not
claim surprise or prejudice had the trial court imposed a lesser sanction than dismissal and
permitted plaintiff to cure the defects in its amended complaint. Rather, defendant simply would
have been placed in the same position it would have found itself in had plaintiff filed its
amended complaint free of any error.

        Under these circumstances, when each of the equitable considerations enumerated above
favor plaintiff, the interests of justice weigh strongly in favor of imposing a less drastic sanction
than dismissal and permitting plaintiff to cure the defects in its amended complaint.
Accordingly, we find that the trial court abused its discretion by sua sponte dismissing plaintiff’s
claim.3



3
 Plaintiff also challenges the following three related trial court orders on appeal: the trial court’s
October 30, 2017, order striking the second amended intervening complaint; the November 2,
2017, order denying Hardiman’s motion seeking clarification; and the November 9, 2017, order
denying plaintiff’s motion for leave to file an amended complaint. However, we need not
address these arguments, as the relief requested is warranted for the reasons discussed above.


                                                 -5-
        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Jonathan Tukel
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael F. Gadola




Likewise, we need not address defendant’s argument that this Court lacks jurisdiction over these
three orders. Defendant does not contest either that the October 30, 2017, order of dismissal is a
final order as defined by MCR 7.202(6) or that plaintiff is an aggrieved party for purposes of
MCR 7.203(A).


                                               -6-
