                           STATE OF MICHIGAN

                            COURT OF APPEALS



GERARD TRUDEL,                                                        UNPUBLISHED
                                                                      March 6, 2018
               Plaintiff-Appellant,

v                                                                     No. 332661
                                                                      Wayne Circuit Court
CITY OF ALLEN PARK, CITY OF ALLEN                                     LC No. 10-012758-CZ
PARK EMPLOYEES RETIREMENT SYSTEM,
CITY OF ALLEN PARK EMPLOYEES
RETIREMENT SYSTEM BOARD OF
TRUSTEES, GARY BURTKA, BEVERLY
KELLEY, ELLEN TEMPLIN, DAVID
TRINGER, and JAMES WILKEWITZ,

               Defendants-Appellees.


Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

        In this case arising out of a pension dispute, plaintiff appeals as of right the trial court’s
order dismissing his case with prejudice. Previously, the trial court denied plaintiff’s motions for
summary disposition and superintending control. Plaintiff now challenges those orders. We
affirm.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

       This case arises out of plaintiff’s attempt to collect a duty disability pension from the city
of Allen Park in addition to the state judicial pension that he already receives. The matter
previously was before our Court, and we refer to that opinion for a brief statement of facts:

       [P]laintiff was a 24th district court judge from January 1, 1993, until his
       resignation on February 27, 2003. Plaintiff claims that he suffers a total and
       permanent disability arising from major depression and anxiety disorders, and that
       these disorders resulted from the performance of his judicial duties. Plaintiff was
       a member of both the State of Michigan Judges Retirement System (the state
       retirement system) and the Allen Park Retirement System. He seeks to recover a
       duty disability pension from the Allen Park Retirement System, in addition to the
       disability pension he receives from the state retirement system. A medical
       advisor for the state retirement system determined that plaintiff was totally and
                                                 -1-
       permanently disabled; however, the state retirement system does not differentiate
       between duty and non-duty disability, whereas the Allen Park Retirement System
       does. In addition to his disability pension from the state retirement system,
       plaintiff has been receiving a service retirement pension from the Allen Park
       Retirement System since he applied for it in 2008; plaintiff contends, however,
       that he is entitled to a duty disability pension. [Trudel v City of Allen Park,
       unpublished per curiam opinion of the Court of Appeals, issued November 14,
       2013 (Docket Nos. 304507, 304567, and 312351) (Trudel I), pp 7-8.]

        When defendants refused to provide plaintiff with a duty disability pension, he filed a 19-
count complaint in the instant case on November 1, 2010. The trial court, believing the state
retirement system’s decision declaring plaintiff to be totally and permanently disabled to be
binding and controlling, granted summary disposition in favor of plaintiff on all of his claims
and closed the case. We reversed, reasoning that there was a question of fact regarding
plaintiff’s entitlement to a duty disability pension because plaintiff had not provided any
evidence supporting his contention that his disability was caused by his work duties as a judge
for the 24th District Court. Id. at 9-10.

        After remand, the trial court indicated its intent to proceed quickly toward trial and issued
a notice of trial requiring plaintiff’s presence. When plaintiff failed to attend the trial, the court
dismissed his case with prejudice. We again reversed, reasoning that the notice of trial relied on
by the trial court was ambiguous and that the trial court failed to properly consider alternative
remedies to dismissal, as required by law. Trudel v City of Allen Park, unpublished per curiam
opinion of the Court of Appeals, issued October 6, 2015 (Docket No. 331749) (Trudel II).

        Once again on remand to the trial court, plaintiff filed six separate motions for summary
disposition and two separate motions for superintending control. The trial court denied those
motions. We denied plaintiff’s application for leave to file an interlocutory appeal of that order.1
The case then continued to trial. Plaintiff arrived for the first day of trial, but left in the middle
of the proceedings, citing illness. Plaintiff returned for the second day of trial, but left in the
middle of defendants’ opening statement, citing mental anguish from defendants’ allegations.
After adjourning for an hour, plaintiff still refused to return to the courtroom. The trial court
denied a motion for a mistrial from plaintiff and once again ordered the case dismissed with
prejudice. This appeal followed.

                               II. SUPERINTENDING CONTROL

        Plaintiff argues that the trial court erred in denying his motions for superintending
control. We disagree.

                     A. STANDARD OF REVIEW AND GENERAL LAW



1
 Trudel v City of Allen Park, unpublished order of the Court of Appeals, entered March 17, 2016
(Docket No. 331749)


                                                 -2-
        “The grant or denial of a petition for superintending control is within the sound discretion
of the court. Absent an abuse of discretion, this Court will not disturb the denial of a request for
an order of superintending control.” The Cadle Co v City of Kentwood, 285 Mich App 240, 246;
776 NW2d 145 (2009), quoting In re Goehring, 184 Mich App 360, 366; 457 NW2d 375 (1990).
“An abuse of discretion occurs when the trial court chooses an outcome falling outside the range
of principled outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “A court
does not abuse its discretion in refusing to grant a writ of superintending control where the party
seeking the writ fails to establish grounds for granting a writ.” The Cadle Co, 285 Mich App at
246.

        “The writ of superintending control supersedes the writs of certiorari, mandamus, and
prohibition, and provides one simplified procedure for reviewing or supervising a lower court or
tribunal’s actions.” Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App
315, 346; 675 NW2d 271 (2003). “This Court has explained, ‘In substituting superintending
control for certiorari, mandamus, and prohibition, the intention was to eliminate frequent
mistakes in the choice of remedies.’ ” Choe v Flint Charter Twp, 240 Mich App 662, 666; 615
NW2d 739 (2000), quoting Lorland Civic Ass’n v DiMatteo, 10 Mich App 129, 137; 157 NW2d
1 (1968). “The Supreme Court, the Court of Appeals, and the circuit court have jurisdiction to
issue superintending control orders to lower courts or tribunals.” MCR 3.302(D)(1).

        “For superintending control to lie, the petitioners must establish that the respondents have
failed to perform a clear legal duty and the absence of an adequate legal remedy.” The Cadle
Co, 285 Mich App at 246, quoting Recorder’s Court Bar Ass’n v Wayne Circuit Court, 443 Mich
110, 134; 503 NW2d 885 (1993). In other words, “[i]f another adequate remedy is available to
the party seeking the order, a complaint for superintending control may not be filed.” MCR
3.302(B). See also In re Payne, 444 Mich 679, 687; 514 NW2d 121 (1994) (“Superintending
control is available only where the party seeking the order does not have another adequate
remedy.”). “An appeal would be an adequate remedy, and a complaint for superintending
control must be dismissed when one is available.” Id. To wit, the court rule governing actions
for superintending control specifically states that, “[w]hen an appeal in the Supreme Court, the
Court of Appeals, or the circuit court is available, that method of review must be used. If
superintending control is sought and an appeal is available, the complaint for superintending
control must be dismissed.” MCR 3.302(D)(2).

                                           B. ANALYSIS

        Despite plaintiff’s lengthy arguments to the contrary, this issue is a simple one. It is
simple because, even if plaintiff was correct that defendants erred in all the various ways alleged,
and even if plaintiff was actually entitled to a duty disability pension, his motions for
superintending control were properly denied because he had an adequate legal remedy. MCR
3.302(D)(2). This outcome is all but preordained by the form of plaintiff’s lawsuit and the
remedies he sought in the remaining counts of his complaint. In pertinent part, as a remedy for
plaintiff’s tort, contract, and constitutional claims, he requested that he be granted a duty
disability pension and to be compensated for the time that the proper pension was withheld. It is
significant that the remedies sought by plaintiff in the legal portions of his lawsuit are identical to
the remedies requested in his motions for superintending control. If the trial court had granted
plaintiff’s motions for summary disposition, or the jury had found in favor of plaintiff after a

                                                 -3-
trial, the ultimate outcome would have been that defendants’ failure to abide by the Allen Park
Ordinances was cured and plaintiff would receive the proper retroactive pension.

        The fact that plaintiff could obtain the same relief requested in his motions for
superintending control as he sought in his motions for summary disposition or by a jury verdict is
dispositive. MCR 3.302(D)(2). Our Supreme Court was clear that “[s]uperintending control is
available only where the party seeking the order does not have another adequate remedy.” In re
Payne, 444 Mich at 687. Confusingly, plaintiff was exercising his right to seek that alternate,
adequate, and legal remedy in the same case that he also is seeking an order of superintending
control. This plainly is not permitted by the court rule and applicable binding case law. See id.;
MCR 3.302(D)(2).2

       The trial court did not abuse its discretion in denying plaintiff’s motions for
superintending control where plaintiff “fail[ed] to establish grounds for granting [it].” The Cadle
Co, 285 Mich App at 246.

                                III. SUMMARY DISPOSITION

        Plaintiff argues that the trial court erred in denying his motions for summary disposition
with respect to his claims for breach of contract, breach of installment contract, and breach of
fiduciary duty. We disagree.

                     A. STANDARD OF REVIEW AND GENERAL LAW

        Plaintiff moved the trial court for summary disposition pursuant to MCR 2.116(C)(9) and
(10). A trial court’s decision regarding a motion for summary disposition is reviewed de novo.
Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). “When deciding a motion under
MCR 2.116(C)(9), a trial court considers the pleadings alone, accepting as true all well-pleaded
allegations, to assess the sufficiency of a defendant’s defenses.” Vayda v Lake Co, ___ Mich
App ___, ___; ___ NW2d ___ (2017) (Docket No. 333495); slip op at 4. “Summary disposition
under MCR 2.116(C)(9) is proper when the defendant’s pleadings are so clearly untenable that as


2
  Plaintiff attempts to avoid this conclusion by focusing on certain language in this Court’s
previous opinion in Trudel I. In pertinent part, plaintiff contends that this Court held that he was
without a legal remedy because defendants admitted that “they have not established or required
an administrative appeal or process regarding duty disability retirement from the Retirement
System.” Trudel I, unpub op at 11 (internal quotation marks omitted). This argument by
plaintiff is without merit, because this court only was commenting on the fact that defendants
had not provided plaintiff with an administrative remedy, not a legal remedy. Id. The court rule
is clear that an action for superintending control must be dismissed where an adequate remedy is
available with a circuit court. MCR 3.302(D)(2). Thus, the fact that plaintiff lacked an
administrative remedy is not relevant, considering that, as discussed, plaintiff had a legal course
of action that provided identical remedies to those sought in his motions for superintending
control. In re Payne, 444 Mich at 687. Therefore, this Court’s decision in Trudel I does not
change the outcome reached, supra. See The Cadle Co, 285 Mich App at 246.


                                                -4-
a matter of law no factual development could possibly deny the plaintiff’s right to recovery.” Id.
at ___; slip op at 4, quoting Abela v Gen Motors Corp, 257 Mich App 513, 518; 669 NW2d 271
(2003).

        “This Court [] reviews de novo decisions on motions for summary disposition brought
under MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A
motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of
the complaint.” Joseph v Auto Club Ins Assoc, 491 Mich 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper
where there is no “genuine issue regarding any material fact.” Id. Similarly, the interpretation of
an ordinance is reviewed de novo. Soupal v Shady View, Inc, 469 Mich 458, 462; 672 NW2d
171 (2003).

        Plaintiff challenges the trial court’s decision denying his motions for summary
disposition on his claims for breach of contract, breach of installment contract, and breach of
fiduciary duty. “[A] contract is an agreement between parties for the doing or not doing of some
particular thing and derives its binding force from the meeting of the minds of the parties[.]” In
re Mardigian Estate, 312 Mich App 553, 562; 879 NW2d 313 (2015) (internal quotation marks
omitted). “Before a contract can be completed, there must be an offer and acceptance.” Clark v
Al-Amin, 309 Mich App 387, 394; 872 NW2d 730 (2015) (internal quotation marks omitted). An
installment contract is still a contract, but one “requiring or authorizing the delivery of goods in
separate lots, or payments in separate increments, to be separately accepted.” Twichel v MIC
Gen Ins Corp, 469 Mich 524, 532 n 5; 676 NW2d 616 (2004) (internal quotation marks omitted;
emphasis in original). “Pension benefits are similar to installment contracts[.]” Harris v City of
Allen Park, 193 Mich App 103, 107; 483 NW2d 434 (1992). Thus, each missed “installment”
amounts to a separate and distinct breach of contract. HJ Tucker & Assoc, Inc v Allied Chucker
& Engineering Co, 234 Mich App 550, 562-563; 595 NW2d 176 (1999).

        In asserting a claim for a breach of contract, installment or otherwise, a party “must
establish by a preponderance of the evidence that (1) there was a contract (2) which the other
party breached (3) thereby resulting in damages to the party claiming breach.” Miller-Davis Co
v Ahrens Constr, Inc, 495 Mich 161, 178; 848 NW2d 95 (2014); Twichel, 469 Mich at 532 n 5.
In order for summary disposition to be proper for a breach of contract claim, there must be no
genuine issue of material fact regarding whether “the party asserting breach of contract suffered
damages as a result of the breach.” Dunn v Bennett, 303 Mich App 767, 774; 846 NW2d 75
(2013) (internal quotation marks omitted).

       “When a fiduciary relationship exists, the fiduciary has a duty to act for the benefit of the
principal regarding matters within the scope of the relationship.” Meyer & Anna Prentis Family
Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 43; 698 NW2d
900 (2005). “Damages may be obtained for a breach of fiduciary duty when a position of
influence has been acquired and abused, or when confidence has been reposed and betrayed.” In
re Baldwin Trust, 274 Mich App 387, 401; 733 NW2d 419 (2007) (internal quotation marks
omitted), aff’d but criticized 480 Mich 915 (2007). A claim for breach of a fiduciary duty

                                                -5-
“sounds in tort[.]” Miller v Magline, Inc, 76 Mich App 284, 313; 256 NW2d 761 (1977); see
also Urbain v Beierling, 301 Mich App 114, 131; 835 NW2d 455 (2013). “The elements of an
action for damages arising out of a tortious injury include: (1) a legal duty, (2) a breach of the
duty, (3) a causal relationship, and (4) damages.” Lumley v Bd of Regents for Univ of Mich, 215
Mich App 125, 130; 544 NW2d 692 (1996). Thus, proof of damages is a necessary element for
any tort claim, including one for breach of a fiduciary duty. See In re Bradley Estate, 494 Mich
367, 392; 835 NW2d 545 (2013); see also Urbain, 301 Mich App at 131; see also Miller, 76
Mich App at 313.

                                         B. ANALYSIS

        Plaintiff contends that defendants breached a contract or installment contract, which he
alleges was formed pursuant to the Allen Park Ordinances, in several different ways. Plaintiff
has raised those same issues in his claim for a breach of the fiduciary duty, stating that in
disregarding the requirements of the Allen Park Ordinances, defendants were breaching their
fiduciary duty to him. Plaintiff contends that there was no question of fact that defendants
deferred his pension without authority under Allen Park Ordinances § 2-182; made the
determination to defer his pension without providing plaintiff with notice, an opportunity to be
heard, or an administrative appeals process in violation of the ordinance; determined that
plaintiff’s pension was to be deferred even though he qualified for a normal pension pursuant to
Allen Park Ordinances § 2-180(a); stated that plaintiff was required to submit a written
application for duty disability pension benefits, although such was not required by Allen Park
Ordinances § 2-185(a); and failed to have the Allen Park medical director examine plaintiff and
confirm his disability caused by his work duties in violation of Allen Park Ordinances § 2-
185(a).

        Plaintiff makes a multitude of arguments, but fails to address a singular, simple, and
dispositive issue. Even if plaintiff was correct that defendants committed all of those alleged
errors, he still was not entitled to summary disposition of his claims for breach of contract,
installment contract, or fiduciary duty, because there remained a question of fact on the issue of
damages and whether he qualified to receive any damages. As noted, proof of damages is an
element in all of plaintiff’s claims challenged on appeal. See In re Bradley Estate, 494 Mich at
392; see also Dunn, 303 Mich App at 774; see also Harris, 193 Mich App at 107. Summary
disposition pursuant to MCR 2.116(C)(10) is only permitted where “there is no question of
material fact as to any of the elements” of a claim or affirmative defense. Shelton v Auto-Owners
Ins Co, 318 Mich App 648, 657; 899 NW2d 744 (2017). Thus, because plaintiff failed to offer
any credible evidence, there was a question of fact regarding his entitlement to pension damages,
and the trial court properly denied summary disposition. See id.

        For each claim, plaintiff contends that he suffered damages by being wrongfully denied
his duty disability pension, which would have provided him more money than the pension he
currently receives, but the amount, if any, to which he claims entitlement is not clear. Plaintiff
seeks retroactive payment for the duty disability pension payments that he alleges he should have
been receiving since March of 2003. Therefore, if plaintiff was never entitled to a duty disability
pension, regardless of the alleged errors, he did not suffer any damages. Consequently, because
there is a question of fact with respect to plaintiff’s entitlement to a duty disability pension and


                                                -6-
damages that would result therefrom, plaintiff’s motions for summary disposition were properly
denied. See id.

        Plaintiff and defendants disagree regarding whether plaintiff was entitled to the duty
disability pension as a matter of law. Plaintiff’s right to collect a pension is governed by the
Allen Park Ordinances. This Court recently discussed the interpretation of ordinances in Morse
v Colitti, 317 Mich App 526, 548; 896 NW2d 15 (2016):

               The rules governing statutory interpretation apply to ordinances. Bonner v
       Brighton, 495 Mich 209, 222; 848 NW2d 380 (2014). Thus, this Court’s goal in
       the interpretation of an ordinance is to discern and give effect to the intent of the
       legislative body. If the language used by the legislative body is clear and
       unambiguous, the ordinance must be enforced as written. Ameritech Publishing,
       Inc v Dep’t of Treasury, 281 Mich App 132, 136; 761 NW2d 470 (2008);
       Warren’s Station, Inc v Bronson, 241 Mich App 384, 388; 615 NW2d 769 (2000).

Thus, in determining plaintiff’s eligibility for a duty disability pension, this Court must begin
with the language of the ordinance. Morse, 317 Mich App at 548.

       Allen Park Ordinances § 2-185, in pertinent part, states:

       Retirement. If an employee shall become totally incapacitated for duty by reason
       of injury, illness or disease resulting from performance of duty, and if the board of
       trustees by or on behalf of such member or by the head of his department so
       certifies, such member shall be retired; provided, the medical director, after
       examination of such member, shall certify to the board of trustees his total
       incapacity.

A crucial requirement of such a pension, therefore, is that plaintiff be “totally incapacitated for
duty by reason of injury, illness or disease resulting from performance of a duty[.]” Id.

        Plaintiff argues that two letters from his psychiatrist, Dr. Raul Guerrero, presented after
our remand in Trudel I, stating that plaintiff’s disability was caused by his work duties, cured any
question of fact regarding the cause of plaintiff’s disability. Defendants assert that Dr.
Guerrero’s letters were inadmissible or ineffective.3 It is axiomatic that “a trial court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties” when
considering motions for summary disposition pursuant to MCR 2.116(C)(10). Maiden, 461


3
  Notably, we do not consider Dr. Guerrero’s affidavit in deciding whether the trial court erred in
denying plaintiff’s motions for summary disposition because plaintiff did not provide the trial
court with that affidavit until well after the motions were decided. Detroit Edison Co v Stenman,
311 Mich App 367, 377; 875 NW2d 767 (2015) (internal quotation marks omitted) (“When
reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court may only
consider, in the light most favorable to the party opposing the motion, the evidence that was
before the trial court . . . then filed in the action or submitted by the parties[.]”).


                                                -7-
Mich at 120. A trial court, however, in deciding motions for summary disposition, may only rely
on evidence that is “substantively admissible.” Pontiac Police & Fire Retiree Prefunded Group
Health & Ins Trust v City of Pontiac No 2, 309 Mich App 611, 618; 873 NW2d 783 (2015). This
Court has held that “an unsworn, unsigned affidavit may not be considered by the trial court on a
motion for summary disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App
113, 120; 839 NW2d 223 (2013).

        The record is undisputed that the first two letters provided by Dr. Guerrero were not
notarized. While they were signed by Dr. Guerrero, a statement with a signature but lacking
notarization does not transform that statement into a valid or admissible affidavit. Sherry v East
Suburban Football League, 292 Mich App 23, 31-32; 807 NW2d 859 (2011). Instead, a valid
affidavit “must be (1) a written or printed declaration or statement of facts, (2) voluntarily made,
and (3) confirmed by the oath or affirmation of the party making it, taken before a person having
authority to administer such oath or affirmation.” Id. at 31. Because the documents were not
notarized, they were not substantively admissible as affidavits, and the trial court was not
permitted to consider them. See Gorman, 302 Mich App at 120.4

        In sum, Dr. Guerrero’s letters regarding the causation of plaintiff’s disability were not
substantively admissible, and therefore, could not be considered in the trial court’s decision
regarding summary disposition. Gorman, 302 Mich App at 120. Absent Dr. Guerrero’s letters,
plaintiff was left without any evidence, except his own assertions, that his disability was caused
by his work duties, resulting in a question of fact regarding that issue. Consequently, there was
also a question of fact regarding plaintiff’s entitlement to a duty disability pension. Allen Park
Ordinances § 2-185(a). Plaintiff alleged that the ultimate damage he suffered from defendants’
breach of contract, installment contract, or fiduciary duty, was the wrongfully withheld duty
disability pension benefits. Considering that there was a question of fact regarding his rights to
those payments, there remained a genuine issue of material fact with respect to all three of those
claims’ damages elements. See In re Bradley Estate, 494 Mich at 392; see also Dunn, 303 Mich
App at 774; see also Harris, 193 Mich App at 107.

        Thus, plaintiff was not entitled to summary disposition on any of those claims, and the
trial court did not err in denying those motions. See Shelton, 318 Mich App at 657.5 That



4
   Plaintiff also argues that the letters were admissible under certain hearsay exceptions,
attempting to skirt the previously discussed rule regarding affidavits. However, regardless of the
applicability of the hearsay rules to the letters prepared by Dr. Guerrero, this Court will not
permit a party to create a question of fact regarding an issue based on an unsworn statement by a
purported expert witness. Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33;
772 NW2d 801 (2009). Thus, Dr. Guerrero’s unsworn letters would likewise be insufficient to
resolve a question of fact in plaintiff’s favor, even if admissible. See id
5
  Briefly, it is also of note that there remains a question of law regarding the language of Allen
Park Ordinance § 2-185(a). In pertinent part, as a condition precedent to obtaining a duty
disability pension, the ordinance requires the Allen Park medical director to “examine” a retiree
and “certify” their status as “totally incapacitated.” Id. The record is undisputed that the Allen


                                                -8-
decision being dispositive on the issue of summary disposition renders the remaining arguments
of the parties moot, and we refuse to consider them.

                             IV. DISMISSAL WITH PREJUDICE

       Plaintiff argues that the trial court abused its discretion when it dismissed his case with
prejudice. We disagree.

                    A. STANDARD OF REVIEW AND GENERAL LAW

        This Court reviews a trial court’s decision to dismiss a case for an abuse of discretion.
Maldonado v Ford Motor Co, 476 Mich 372, 387-388; 719 NW2d 809 (2006). “An abuse of
discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Edry, 486 Mich at 639. Meanwhile, “[t]his Court reviews de novo questions about
the correct interpretation and application of statutes and court rules.” Home-Owners Ins Co v
Andriacchi, 320 Mich App 52, 71; 903 NW2d 197 (2017).

       To resolve this issue, we look to the applicable court rules. This Court recently restated
the proper procedure for interpreting the court rules. In In re DeCoste Estate, 317 Mich App
339, 346; 894 NW2d 685 (2016), we said:

       We analyze court rules using the same rules of construction that are used to
       analyze statutes. [In re] Leete Estate, 290 Mich App [647,] 655[; 803 NW2d 889
       (2010)]. “Our goal in interpreting the meaning of a court rule is to give effect to
       the intent of the drafters.” Id. We first examine the language of the court rule.
       Id. “The drafters are assumed to have intended the effect of the language plainly
       expressed, and we must give every word its plain and ordinary meaning.” Id. at
       655–656. If the language is plain and unambiguous, we apply the language as it
       is written in the court rule. Id. at 656. “In such instances, judicial construction is
       neither necessary nor permitted.” Id.

       “The court in which a matter is pending may by order or subpoena command a party or
witness to appear for the purpose of testifying in open court on a date and time certain and from


Park medical director never performed that duty in the instant case. Plaintiff contends that
defendants breached their contract with him by not ordering the Allen Park medical director to
perform that duty once they received notice of plaintiff’s disability from the state retirement
system. However, the plain language of the ordinance does not provide which party is required
to take the proactive step of requesting that examination and certification. Id. The ordinance
does not clarify whether plaintiff was required to request an examination and certification from
the Allen Park medical director, or whether defendants were required to request plaintiff to
submit to such an examination for the purpose of certification. Id. Thus, even if Dr. Guerrero’s
letters were admissible and dispositive of causation, plaintiff’s entitlement to a duty disability
was not established as a matter of law for summary disposition. Id. In either case, the motions
were properly denied. See Shelton, 318 Mich App at 657.


                                                -9-
time to time and day to day thereafter until excused by the court.” MCR 2.506(A)(1). In
accordance with MCR 2.506(B)(1), “A subpoena signed by an attorney of record in the action or
by the clerk of the court in which the matter is pending has the force and effect of an order
signed by the judge of that court.” MCR 2.506(F)(5) and (6) provide, “If a party . . . fails to
attend . . . pursuant to a subpoena or an order to attend, the court may . . . dismiss the action or
any part of it . . . [or] enter judgment by default against that party[.]” The imposition of such a
sanction is discretionary as evidenced by use of the term “may” within the referenced subsection.
In re Estate of Weber, 257 Mich App 558, 562; 669 NW2d 288 (2003) (“[T]he term ‘may’
presupposes discretion and does not mandate an action.”).

       In sum, “[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.” Vicencio v Jaime
Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d 280 (1995). “Dismissal is a drastic step
that should be taken cautiously.” Brenner v Kolk, 226 Mich App 149, 163; 573 NW2d 65
(1997). Because “dismissal is a drastic sanction,” this Court requires consideration of the
following factors before doing so:

       (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, 277 Mich App 622, 631; 750 NW2d 228 (2008),
       quoting Vicencio, 211 Mich App at 507.]

                                         B. ANALYSIS

         Plaintiff was provided with a notice of trial on February 10, 2016, more than one month
before trial in compliance with the 28 days’ notice provision in MCR 2.501(C). Further,
defendants issued plaintiff a subpoena on March 2, 2016, identifying the date and time set for
trial, as well as referencing that plaintiff might be required to return on subsequent days in order
to testify. The subpoena was sent in compliance with MCR 2.506(C)(1), which requires only
that the subpoena be sent “at least 2 days before the witness is to appear.” Plaintiff did not
challenge that subpoena pursuant to MCR 2.506(C)(3). On the first day of trial, plaintiff exited
the courtroom before opening statements began. Plaintiff complained of stomach issues.
Plaintiff’s counsel moved the trial court to adjourn the proceedings until the following day, but
the trial court stated that he would excuse plaintiff’s absence for opening statements. Defendants
moved the trial court to continue the subpoena to the next day. Plaintiff did not object to that
request, and even requested that his own subpoenas be similarly continued. The trial court stated
that plaintiff would have to attend the trial the following day.

        At the start of the proceedings on the second day of trial, plaintiff was in the courtroom.
During defendants’ opening continued from the previous day, plaintiff objected to many of the
statements regarding allegations made against him by the Judicial Tenure Commission (JTC) and
his alleged testimony before the Workers’ Compensation Board. Plaintiff became upset when
the trial court overruled those objections. Eventually, while defendants were still giving their
opening statement, plaintiff left the courtroom. After the openings, plaintiff refused to return to

                                               -10-
the courtroom, claiming that he was mentally unable to continue. Despite defendants’ motion to
dismiss, the trial court ordered that it would adjourn until plaintiff’s other potential witness,
Allen Park City Clerk Michael Mizzi, arrived. One hour later, the trial court noted that plaintiff
still was refusing to return to the courtroom. There was no indication on the record whether
Mizzi had arrived. Plaintiff’s counsel moved for a mistrial based on defendants’ allegedly
improper opening statement. When the trial court denied that motion, plaintiff’s counsel stated
that plaintiff was not prepared to continue with his case. Defendants again moved the trial court
to dismiss plaintiff’s case without prejudice. The trial court granted that motion, but with
prejudice, reasoning that plaintiff was aware he was under subpoena to be a witness, had
adequate notice of trial requiring his presence, and had abandoned the case.

         The Vicencio factors lay out the test for whether a trial court abuses its discretion in
dismissing an action with prejudice. The first factor requires consideration of whether plaintiff’s
violation of the court order was wilful or accidental. Vicencio, 211 Mich App at 507. We
previously held that “[t]o be willful, the failure need not be accompanied by wrongful intent. It
is sufficient if it is conscious or intentional, not accidental or involuntary.” Edge v Ramos, 160
Mich App 231, 234; 407 NW2d 625 (1987). The subpoena issued to plaintiff required his
presence for trial. As a valid subpoena, it had the effect of an order of the court. MCR
2.506(B)(1). 6 Further, the notice of trial issued to plaintiff, more than one month in advance of
trial, required his presence. 7 Plaintiff violated those court orders when he left the courtroom on
both days of trial. Although plaintiff contends that he left due to alleged sickness and places
blame on his mental state due to the trial court’s orders allowing allegedly inadmissible evidence


6
  Plaintiff asserts for the first time on appeal that the subpoena was ineffective because it was not
proper under the laws of his home state of California. Plaintiff waived this argument by failing
to challenge the subpoena and initially abiding by its terms. “[A] waiver is a voluntary and
intentional abandonment of a known right.” Quality Prod Concepts Co v Nagel Precision, Inc,
469 Mich 362, 374; 666 NW2d 251 (2003). Plaintiff undoubtedly knew of his right to challenge
the subpoena, because he did so before the previous trial, as discussed in Trudel II, unpub op at
2. Further, he was provided with several instances to raise the right, the most obvious of which
was when defendants requested to continue the subpoena on the first day of trial. His failure to
exercise his rights was a waiver. See id. This Court will not “permit [plaintiff] to harbor error as
an appellate parachute.” Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352
(2014).
7
  Plaintiff argues that the notice is ambiguous and ineffective based on this Court’s previous
decision in Trudel II, unpub op at 3-4, which held that the language used in the notice of trial
could be read to require only the presence of plaintiff’s counsel. While it is perplexing that the
trial court would continue to use the same notice of trial that this Court determined to be
ambiguous, plaintiff cannot rely on that ambiguity a second time. It is only logical that plaintiff
properly understood the notice of trial this time around because the trial court made itself clear,
when it dismissed plaintiff’s case when he failed to attend the previous trial, that the notice of
trial required plaintiff’s personal attendance. Thus, this Court’s previous decision in Trudel II is
unhelpful to plaintiff, because it reveals his awareness of the trial court’s expectations when
issuing the notice of trial – that plaintiff was to personally attend.


                                                -11-
to be discussed during opening statement, we find those facts to be irrelevant because plaintiff
need not have intended to disobey the court’s orders in order to have willfully violated them.
Edge, 160 Mich App at 234. Instead, it was enough that plaintiff knew he was under court order
to be there for trial, but chose to leave anyway. See id.

        Thus, despite plaintiff’s arguments to the contrary, he willfully violated an order of the
trial court when he left the courtroom. See Vicencio, 211 Mich App at 507.

         We consider the second, fourth, and fifth Vicencio factors together, because they are
interrelated. Under these factors, we evaluate “the party’s history of refusing to comply with
previous court orders;” “whether there exists a history of deliberate delay; [and] the degree of
compliance with other parts of the court’s orders[.]” Id. When the instant case first began,
plaintiff served more than 300 requests to admit on defendants. Defendants asserted that the
requests were burdensome and an attempt to increase the cost of litigation. In response, the trial
court set aside those requests and defendants’ responses, and ordered plaintiff to resubmit a
different version that was limited to 50 such requests. In Trudel I, unpub op at 2-4, we affirmed
that order of the trial court. Despite the trial court’s order setting aside defendants’ responses
and this Court’s affirmance thereof, plaintiff repeatedly and consistently relied on defendants’
alleged admissions in those responses, attaching a multitude of pages to almost every motion he
filed with the trial court. Plaintiff also sought to admit those responses as evidence at trial.
Plaintiff’s actions not only exhibit “a history of deliberate delay” considering the vast amount of
requests originally served and then his continued reliance on defendants’ responses thereto
despite the fact that they were set aside, but plaintiff also has a history of refusing to comply with
the trial court’s orders. See Vicencio, 211 Mich App at 507. Further, it shows plaintiff’s intent
to ignore our opinions.

        This trend continued when, before any presentation of evidence at trial, defendants
sought dismissal of plaintiff’s negligence claims against the entity defendants. Despite this
Court’s clear and unequivocal holding in Trudel I, unpub op at 15-17, that those claims were
barred by governmental immunity as a matter of law, plaintiff refused to stipulate to their
dismissal. Once again, plaintiff’s behavior revealed a disregard for courts’ orders and an intent
to deliberately delay the proceedings. Plaintiff further exhibited his intent to deliberately delay
the proceedings by filing six motions for summary disposition and two motions for
superintending control, which all relied on almost identical wrongs and requested almost
identical relief.

        Considering plaintiff’s litigation and non-compliant history, the second, fourth, and fifth
factors weighed heavily in favor of dismissal with prejudice. See Vicencio, 211 Mich App at
507.

        With regard to the third factor, plaintiff’s absence in violation of the court’s order caused
prejudice to defendants. See id. Defendants’ case, as stated during their opening statement,
relied largely on the allegation that plaintiff’s disability was not caused by his work duties.
Pursuant to the trial court’s evidentiary orders, defendants’ primary way of introducing evidence
of plaintiff’s acknowledgment that there were other causes for his disability was to be plaintiff’s
cross-examination and use of his previous words to impeach his testimony. Considering


                                                -12-
plaintiff’s absence from the courtroom, defendants would have been denied that opportunity.
Thus, this factor weighed in favor of dismissal. Id.

        The sixth factor also weighed in favor of dismissal, because plaintiff did not take any
steps to cure his absence from the court. Id. Indeed, the fact that plaintiff left the courtroom two
days in a row indicated that he had no plans to participate in the trial at any time. The trial court
twice gave plaintiff an opportunity to cure his absence by adjourning the proceedings but to no
avail. When the trial court finally dismissed the case, it did so because plaintiff refused to return
to the courtroom after the trial court’s second adjournment. Id. In our view, the trial court was
left with no choice.

        The seventh, and final, Vicencio factor requires consideration of “whether a lesser
sanction would better serve the interests of justice.” Id. The trial court not only considered
lesser sanctions but, on two occasions, used them. The first sanction for failing to appear at trial
pursuant to a court order was to “stay further proceedings until the order is obeyed.” MCR
2.506(F)(1). The trial court adjourned the presentation of evidence on the first day of trial,
providing plaintiff with additional time to return to the courtroom, even though he would miss
portions of the opening statements. The following day, the trial court adjourned the trial again
when plaintiff exited the courtroom even though he had expressed his intent to testify first, so
other witnesses were not in attendance. After both adjournments, plaintiff still refused to enter
the courtroom. The trial court then considered, based on defendants’ motion, whether dismissal
without prejudice was an adequate sanction. Ultimately, the trial court determined that it was
not, noting plaintiff’s continued failure to abide by the trial court’s orders and his essential
abandonment of the case. The record shows that a dismissal without prejudice, or any lesser
sanction, would have led to plaintiff’s continued disregard for court orders and deliberate delay.
Thus, this factor also weighed in favor of dismissal with prejudice. Id.

        In sum, all of the Vicencio factors favored dismissal in this case, and although the trial
court did not identify Vicencio or its factors by name, the context of the trial court’s order fully
supports that its decision to dismiss the case with prejudice was within the range of principled
outcomes. Edry, 486 Mich at 639. Therefore, the trial court did not abuse its discretion. Id.

        Plaintiff provides a multitude of arguments in an attempt to avoid this conclusion, none
of which has merit. First, plaintiff asserts that the trial court failed to consider that it was
actually Mizzi’s absence from trial in violation of his subpoena that caused the dismissal.
Plaintiff’s contention is without merit because plaintiff fails to acknowledge that it was his
refusal to return to the courtroom that made Mizzi’s absence even remotely problematic.
Plaintiff previously agreed to provide defendants with a few hours’ notice when a witness would
be called, so that the witnesses could leave work. Mizzi left the court, according to the record,
because plaintiff asserted he would testify first. Thus, Mizzi’s absence was caused by plaintiff
and it is well-settled that this Court will not reverse “upon alleged error to which the aggrieved
party contributed by plan or negligence.” Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d
675 (2003). Furthermore, the trial court record does not provide any guidance on whether Mizzi
had actually returned to the courtroom after the court adjourned to wait for Mizzi’s arrival.
Because our review is limited to the record, there is no factual predicate for plaintiff’s claim that
Mizzi’s absence was in violation of a subpoena. Sherman v Sea Ray Boats, Inc, 251 Mich App
41, 56; 649 NW2d 783 (2002).

                                                -13-
        Second, plaintiff asserts that the trial court failed to consider his mental anguish upon
hearing defendants’ opening statement after the trial court overruled his objections. Notably, the
mental state of a party after adverse evidentiary rulings, regardless of the merit of those
decisions, is not a factor typically considered under Vicencio, 211 Mich App at 507. It would set
a dangerous precedent to allow a party to abandon a case when he is emotionally affected, or
feigns emotional affection, by evidentiary rulings and then be permitted to use a subjective
reaction to his advantage on appeal.

        Related to his mental anguish contention is plaintiff’s claim that the trial court erred by
failing to consider his disability under the Persons with Disabilities Civil Rights Act (PDCRA),
MCL 37.1101 et seq., before dismissing the case. Plaintiff, however, did not request any
accommodation or consideration under the PDCRA before the trial court dismissed his case.
Additionally, now on appeal, when first making this argument, plaintiff fails to provide even an
inkling of what accommodations would have been satisfactory, or any authority, besides a
general reference to the PDCRA itself, that would require this Court to reverse the trial court’s
decision to dismiss the case based on an alleged failure to consider his disability. “This Court
will not search for authority to sustain or reject a party’s position. The failure to cite sufficient
authority results in the abandonment of an issue on appeal.” King v Mich State Police Dep’t, 303
Mich App 162, 176; 841 NW2d 914 (2013). Further, “ ‘[i]ssues raised for the first time on
appeal are not ordinarily subject to review’ and ‘this Court has repeatedly declined to consider
arguments not presented at a lower level[.]’ ” Kemp v Farm Bureau Gen Ins Co of Mich, 500
Mich 245, 254 n 26; 901 NW2d 534 (2017), quoting Booth Newspapers, Inc v Univ of Mich Bd
of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993). Thus, we refuse to consider this
argument by plaintiff.

        Lastly, plaintiff contends that the trial court should never have reached the issue of
dismissing the case because it should have granted plaintiff’s motion for a mistrial. Plaintiff’s
motion for a mistrial was based on the alleged misconduct of defendants’ counsel during opening
statement. “[T]he purpose of an opening statement is to tell the jury what the advocate will
attempt to prove.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 503; 668 NW2d 402
(2003). “An attorney’s comments do not normally constitute grounds for reversal unless they
reflect a deliberate attempt to deprive the opposing party of a fair and impartial proceeding.”
Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 21; 837 NW2d 686 (2013).
Ultimately, plaintiff’s abandonment of the case renders this issue unreviewable.

        One of the main issues remaining for trial was whether plaintiff’s disability was caused
by his work duties. The challenged portions of defendants’ opening statement related to other
potential causes of plaintiff’s disability, focusing on the JTC investigation. Defendants alleged
that plaintiff had previously testified, under oath, during a hearing before the Workers’
Compensation Board, that the JTC investigations and the allegations therein were the cause of
his disability. Over plaintiff’s objections, the trial court held that defendants would be permitted
to impeach plaintiff during cross-examination on the basis of that alleged testimony. Assuming
plaintiff would have testified at trial that his disability was caused by his work duties, use of
plaintiff’s prior inconsistent statements during the Workers’ Compensation hearing would have




                                                -14-
been a permissible use of impeachment evidence pursuant to MRE 613. See Barnett v Hidalgo,
478 Mich 151, 164-165; 732 NW2d 472 (2007). Moreover, relevant portions of the
administrative hearing transcript itself were plausibly admissible pursuant to MRE 613.8

         Further, our review is curtailed because the trial never reached plaintiff’s testimony or
cross-examination, due to his abandonment of the case. Thus, because the trial ended before
defendants were able to present that transcript, we cannot now know whether, as claimed in
defendants’ opening statement, plaintiff previously testified regarding other causes of his
disability. This Court can only review the existing record, which does not contain the testimony.
See Sherman, 251 Mich App at 56. Therefore, there is a distinct possibility that defendants’
claims were true, and if true, were highly relevant to a crucial issue at trial – causation of
plaintiff’s disability. Consequently, the record on appeal provides no ground for us to hold that
defendants’ opening statement “deprive[d] [plaintiff] of a fair and impartial proceeding,” or that
the trial court should have granted plaintiff’s motion for a mistrial. Zaremba Equip, 302 Mich
App at 21.

       Considering that the trial court did not abuse its discretion by dismissing plaintiff’s case
with prejudice, the remaining issues have been rendered moot.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Mark T. Boonstra
                                                            /s/ Michael F. Gadola




8
 MRE 613 creates an exception for admissions of a party-opponent pursuant to MRE 801(d)(2).
See Barnett, 478 Mich App at 164-165.


                                               -15-
