                            STATE OF MICHIGAN

                            COURT OF APPEALS



DAMONA TAYLOR,                                                      UNPUBLISHED
                                                                    May 15, 2018
               Plaintiff-Appellant,

v                                                                   No. 337001
                                                                    Wayne Circuit Court
DWAYNE LALONDE,                                                     LC No. 13-001487-NI

               Defendant-Appellee,

and

FARMERS INSURANCE EXCHANGE,

               Defendant.


Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

        Plaintiff appeals as of right the December 16, 2016 order denying plaintiff’s motion for
reinstatement of her automobile negligence case against defendant, Dwayne Lalonde, which was
previously dismissed without prejudice under MCR 2.502(A)(1) for a lack of progress in
presenting a final order or judgment to the trial court or otherwise contacting the trial court to
inform the court that its records were incorrect regarding the need for a final order or judgment.
For the reasons set forth in this opinion, we affirm.

                                       I. BACKGROUND

        On February 28, 2012, plaintiff was involved in a car accident. Plaintiff was a passenger
in a vehicle traveling westbound on Outer Drive near Plymouth Road in Detroit, Michigan. The
front of plaintiff’s vehicle was struck by defendant’s vehicle, which was traveling northbound on
Plymouth Road, after defendant allegedly ran a red light. Plaintiff was subsequently taken to
Oakwood Hospital and Medical Center.

       On January 25, 2013, plaintiff filed a two-count complaint alleging defendant negligently
operated his automobile, which resulted in an accident that caused plaintiff to sustain a serious
impairment of bodily function, and alleging plaintiff was entitled to first-party no-fault benefits
from defendant, Farmers Insurance Exchange (“Farmers”). Plaintiff had difficulty serving
defendant, and defendant did not file an answer to plaintiff’s complaint until shortly before
                                                -1-
plaintiff’s case was administratively dismissed. Meanwhile, plaintiff’s first-party suit against
Farmers for no-fault benefits ensued and was eventually settled. A stipulated order of dismissal
with prejudice regarding plaintiff’s no-fault benefits claim against Farmers was entered on
March 28, 2014. The stipulated order of dismissal included a statement indicating that the
stipulated order of dismissal was not a final order and it did not “resolve the last pending claim
before this Court.”

        On May 29, 2014, the trial court sent plaintiff a notice of intent to dismiss plaintiff’s
action without prejudice. The notice indicated that the plaintiff’s case was “awaiting the entry of
the final order or judgment.” The bottom of the notice indicated that the notice form was based
on MCR 2.502(1)(A). The notice then provided, in pertinent part:

              1. If the order or judgment has been entered, or if this notice is in error,
       please notify the clerk of the assigned judge so that the court’s record may be
       corrected.

               2. If a final order or judgment has not been entered by the cutoff date
       noted above [, June 26, 2014,] or the court otherwise contacted, an order of
       dismissal without prejudice will be entered by the court and sent to the
       parties/attorneys at the addresses of record.

        After defendant filed its answer on June 19, 2014, plaintiff and defendant began to
engage in discovery. However, on July 8, 2014, the trial court entered an administrative
dismissal closing the case for lack of progress in presenting a final order or judgment. More
specifically, the administrative dismissal stated, “[t]his case coming regularly before the court
and no order or judgment having been presented within the ten (10) day period following
adjudication by the court and proper notice of impending dismissal has been mailed, it is ordered
that the above entitled cause is hereby dismissed.” Similarly to the notice, the bottom of the
dismissal indicated that the administrative dismissal form used by the trial court was based on
MCR 2.502(A)(1).

        Despite the administrative closure, plaintiff and defendant continued to engage in
discovery for a couple of months. However, in late August 2014, by plaintiff’s own admission,
all activity ceased on this action until over two years later when plaintiff filed a motion for
reinstatement on October 28, 2016. The trial court denied reinstatement because “[g]ood cause
[was] not presented and [p]laintiff could have brought this to my attention much earlier.”
Plaintiff moved for reconsideration, which was denied because the court found that there was
“[n]o palpable error.”

                                         II. ANALYSIS

       On appeal, plaintiff argues that the trial court improperly dismissed her case without
prejudice for a lack of progress regarding the presentation of a final order or judgment because
there was no basis to show that plaintiff violated the terms of the notice of intent to dismiss.

       An issue is properly preserved for appellate review if it was raised before the trial court,
and the raised issue was subsequently addressed and decided by the trial court. Gen Motors
Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010). Plaintiff did not
                                                -2-
raise this issue below. Consequently, it is unpreserved. A litigant’s unpreserved claims are
reviewed for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333,
336; 612 NW2d 838 (2000).

        With regard to unpreserved issues in civil cases, this Court may exercise its discretion to
overlook the preservation requirements and reach an otherwise unpreserved issue “if the failure
to consider the 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[.]” Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427;
711 NW2d 421 (2006). In order to fully adjudicate plaintiff’s claims on appeal, we consider the
issue.

               MCR 2.502, provides, in pertinent part:

               (A) Notice of Proposed Dismissal.

               (1) On motion of a party or on its own initiative, the court may order that
       an action in which no steps or proceedings appear to have been taken within 91
       days be dismissed for lack of progress unless the parties show that progress is
       being made or that the lack of progress is not attributable to the party seeking
       affirmative relief.

                                               * * *
               (3) The notice shall be given in the manner provided in MCR 2.501(C) for
       notice of trial.

               (B) Action by Court.

               (1) If a party does not make the required showing, the court may direct the
       clerk to dismiss the action for lack of progress. Such a dismissal is without
       prejudice unless the court specifies otherwise.

        Here, plaintiff argues that the trial court erred in dismissing her case for a lack of
progress because plaintiff did not violate the terms of the notice of intent to dismiss.
Specifically, plaintiff argues that because the order dismissing Farmers was already entered and
appeared in the court’s own internal docket sheet, there was no need to contact the court to assist
in correcting its records because the records as they existed were correct. The fundamental
problem with plaintiff’s argument is that it ignores the full language of the notice. The notice
begins by stating in a header that “the above action, [Case No. 13-001487-NI,] is awaiting the
entry of the final order or judgment.” The notice then states, in the first paragraph, “[i]f the order
or judgment has been entered, or if this notice is in error, please notify the clerk of the assigned
judge so that the court’s record may be corrected.” (Emphasis added.) The notice continues, in
the second paragraph, “[i]f a final judgment or order has not been entered by [June 26, 2014] or
the court otherwise contacted,” the case will be dismissed without prejudice. (Emphasis added.)
Hence, plaintiff overlooks the disjunctive word “or” in making her argument. The trial court’s
“use of the disjunctive word ‘or’ indicates an ‘alternative or choice between two things.’ ”
Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 209; 895 NW2d 490

                                                 -3-
(2017) (citation omitted). Thus, the notice clearly indicated that there was a need to contact the
court, even if the correct order was already entered, because if that was the case, then the notice
was “in error[.]” Consequently, the court should be contacted, “so that the court’s record” about
the apparent need for a final order or judgment, “may be corrected.” Plaintiff did not do so. By
extension, the second paragraph was triggered because there is no evidence on the record that the
court had been “otherwise contacted” by the cutoff date to correct its record that a final order or
judgment had already been entered and that the notice was in error.

       Further, plaintiff’s argument also overlooks the fact that the stipulated order of dismissal
was not a “final order” under MCR 2.604(A), which provides, in pertinent part:

       an order or other form of decision adjudicating fewer than all the claims, or the
       rights and liabilities of fewer than all the parties, does not terminate the action as
       to any of the claims or parties, and the order is subject to revision before entry of
       final judgment adjudicating all the claims and the rights and liabilities of all the
       parties.

        Thus, even if this Court were to presume that the trial court’s record was incorrect about
the need for a final order, by the terms of the notice, plaintiff should have contacted the trial
court to inform it that the notice was sent in error because there was no need for a final order.
Admittedly, plaintiff did not do so. Hence, we conclude that there was a basis to dismiss the
case without prejudice under the notice because plaintiff did not comply with its terms. Thus,
plaintiff’s argument fails to persuade that the administrative dismissal of plaintiff’s case was
improper.

        Next, plaintiff argues on appeal that the trial court abused its discretion in refusing to
reinstate plaintiff’s case. A trial court’s decision regarding a motion to reinstate an action
dismissed for a lack of progress is reviewed for an abuse of discretion. Wickings v Arctic
Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197 (2000). An abuse of discretion occurs
when the decision results in an outcome falling outside the range of reasonable and principled
outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 338; 719 NW2d 809 (2006).

       MCR 2.502(C) provides:

              (C) Reinstatement of Dismissed Action. On motion for good cause, the
       court may reinstate an action dismissed for lack of progress on terms the court
       deems just. On reinstating an action, the court shall enter orders to facilitate the
       prompt and just disposition of the action.

         Plaintiff asserts that under the five factors set forth in Wicking’s, 244 Mich App at 142,
the trial court abused its discretion by rejecting her motion for reinstatement.

       Wickings provides, in relevant part:

       one or more of the following factors may be relevant to determining good cause to
       reinstate an action one or more of the following factors may be relevant to
       determining good cause to reinstate an action: (1) procedural or technical error in
       dismissing the case for lack of progress, (2) the movant’s actual diligence before

                                                -4-
       dismissal, (3) justification for the movant’s failure to make progress before
       dismissal, (4) the movant’s diligence in attempting to settle the case or a prompt
       motion to reinstate it following dismissal, and (5) potential prejudice to the
       nonmovant if the action is reinstated. [Wickings, 244 Mich App at 142.]

         This Court in Wickings also acknowledged that these factors were not exhaustive and
recognized that a particular factor may not be relevant in a given case. Id. We do agree with
plaintiff that the Wickings factors provide a useful framework to analyze plaintiff’s claim. First,
as discussed above, plaintiff’s specific allegation of procedural error lacks merit given that
plaintiff failed to follow the terms of the notice, which weighs against reinstatement. Second,
while plaintiff was diligent in pursuing her case against Farmers, and appeared, at the outset, to
be diligent in pursuing her case against defendant, plaintiff was not diligent in responding to the
trial court’s notice, which also weights against reinstatement. Third, at no point during the
litigation below or on appeal has plaintiff offered an adequate explanation as to why, during a
two year span, she never contacted the trial court regarding the notice being in error.
Consequently, this factor weighs against reinstatement. Fourth, there is no explanation as to why
the parties continued to engage in discovery for a couple of months after the administrative
dismissal, yet plaintiff failed to move to reinstate the case during that period. Further, there is no
explanation as to why discovery abruptly stopped and why plaintiff failed move to reinstate her
case in light of the abrupt stoppage of discovery, which suggests plaintiff was not diligently
pursuing her case as she alleges. Critically, there is no explanation as to why it took over two
years to bring the matter back to the trial court’s attention. Given that the first four factors
strongly suggest that reinstatement was inappropriate for reasons wholly related to plaintiff’s
conduct, and given that the fifth factor would only mildly support reinstatement if there were no
prejudice to defendant at all, it is not necessary to fully consider the fifth factor because it cannot
overcome the combined force of the other four factors. In sum, we conclude that the trial court
did not abuse its discretion in denying plaintiff’s motion for reinstatement.

       Affirmed. No costs are accessed. MCR 7.219(A).



                                                               /s/ Stephen L. Borrello
                                                               /s/ David H. Sawyer
                                                               /s/ Kathleen Jansen




                                                 -5-
