            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



TYROSH BROWN,                                                        UNPUBLISHED
                                                                     March 19, 2019
               Plaintiff-Appellant,

v                                                                    No. 341867
                                                                     Kent Circuit Court
AVALON BUILDING CONCEPTS,                                            LC No. 16-011256-CK

               Defendant-Appellee.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

     Plaintiff appeals as of right an order granting defendant’s motion to dismiss pursuant to
MCR 2.504(B)(1). We reverse and remand for further proceedings consistent with this opinion.

        The parties entered into a contract in which defendant agreed to replace plaintiff’s roof.
Defendant completed the work and received payment in full. In December 2016, plaintiff filed
this suit in Kent Circuit Court, alleging that defendant’s work on his roof was unsatisfactory.
The trial court held a scheduling conference, at which it explicitly advised the pro se plaintiff
that both parties would be required to comply with applicable court rules and the trial court’s
scheduling order. In May 2017, defendant served discovery requests to plaintiff, including
requests for admissions, requests for production, and interrogatories. Plaintiff failed to reply to
these written discovery requests. Defendant filed a second set of requests for admissions in July
2017, to which plaintiff filed a response of blanket denials as to each request except those
pertaining to the identities of the parties. Plaintiff failed to file a witness list or otherwise
disclose any witnesses he would present at trial. The parties were also ordered to attend case
evaluation. A notice to appear at case evaluation was sent to both parties, stating that failure to
attend may result in dismissal under MCR 2.504(B). Plaintiff acknowledges that he arrived at
case evaluation late, after defendant had left.

        After case evaluation, defendant moved for dismissal based on plaintiff’s failure to file
witness lists, respond to discovery requests, or fully participate in mediation or case evaluation.
Plaintiff filed a written objection but did not appear at the hearing on the motion. The trial court
granted defendant’s motion, finding that plaintiff had failed to comply with pretrial procedure.



                                                -1-
Plaintiff objected to entry of an order to dismiss submitted under MCR 2.602(B)(3), alleging that
dismissal would be illegal, unlawful, and biased. The trial court considered plaintiff’s objection
but reiterated that plaintiff had repeatedly failed to comply with the court’s scheduling order
despite being advised of the court’s orders and rules at the scheduling conference. The court
entered the order of dismissal, and plaintiff now appeals.

        This Court reviews a trial court’s decision to grant a motion to dismiss for an abuse of
discretion. Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). A trial court
abuses its discretion when it reaches a decision that falls outside the range of principled
outcomes. Keinz v Keinz, 290 Mich App 137, 141; 799 NW2d 576 (2010).

       Plaintiff first argues that he did not receive notice that his presence was necessary at the
hearing on the motion to dismiss and that, without notice, the trial court could not properly
dismiss his claim. Plaintiff’s position is premised on a misunderstanding of the record. The trial
court dismissed plaintiff’s case based on his failure to comply with pretrial procedures, not his
absence from the motion hearing.

        A trial court may dismiss an action pursuant to MCR 2.504(B)(1), which provides: “If a
party fails to comply with these rules or a court order, upon motion by an opposing party, or sua
sponte, the court may enter a default against the noncomplying party or a dismissal of the
noncomplying party’s action or claims.” “Dismissal is a drastic step that should be taken
cautiously.” Vicencio, 211 Mich App at 506. This Court has summarized a nonexhaustive list of
factors that should be considered before dismissal:

       (1) whether the violation was wilful 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. [Id. at
       507.]

“[T]he record should reflect that the trial court gave careful consideration to the factors involved
and considered all of its options in determining what sanction was just and proper in the context
of the case before it.” Duray Dev, LLC v Perrin, 288 Mich App 143, 165; 792 NW2d 749
(2010) (quotation marks and citation omitted; alteration in original). A trial court’s failure to
evaluate other options on the record before dismissing a case amounts to an abuse of discretion.
Vicencio, 211 Mich App at 506-507.

        Here, there is no indication that the trial court considered the Vicencio factors or
evaluated other available sanctions before dismissing plaintiff’s case. We therefore agree with
plaintiff’s contention that a remand is required. Id. While we recognize that dismissal may have
been an appropriate sanction, the trial court could not properly reach that determination without
first considering the factors outlined in Vicencio on the record. Nor would it be appropriate for
this Court to independently evaluate the issue at this juncture. See Houston v Southwest Detroit




                                                -2-
Hosp, 166 Mich App 623, 631; 420 NW2d 835 (1987)1 (declining to usurp trial court’s function
of evaluating in the first instance whether dismissal was the most appropriate sanction).
Accordingly, we reverse and remand for reconsideration of relevant factors, as outlined in
Vicencio, and redetermination of what, if any, sanction is just and proper considering the
circumstances of the case.

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




                                                         /s/ Michael J. Riordan
                                                         /s/ Jane E. Markey
                                                         /s/ Anica Letica




1
  Although Houston is not precedentially binding upon this Court, MCR 7.215(J)(1), we consider
it as persuasive authority. Doe v Dep’t of Transp, 324 Mich App 226, 231 n 2; 919 NW2d 670
(2018).


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