                          STATE OF MICHIGAN

                           COURT OF APPEALS



CULLEY STROMAN,                                                     UNPUBLISHED
                                                                    December 9, 2014
               Plaintiff-Appellant,

v                                                                   No. 318004
                                                                    Wayne Circuit Court
CITIZENS INSURANCE COMPANY OF                                       LC No. 12-009954-NF
AMERICA,

               Defendant-Appellee.


Before: RIORDAN, P.J., and SAAD and TALBOT, JJ.

PER CURIAM.

        Plaintiff appeals as of right the trial court’s order of dismissal in this no-fault action.
Plaintiff contends that the trial court imposed the harshest sanction—dismissal—without
analyzing the relevant factors. We remand.

                                         I. DISMISSAL

                                 A. STANDARD OF REVIEW

       “A trial court’s decision to dismiss an action is reviewed for an abuse of discretion.”
Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007). “An abuse of discretion
occurs when the decision results in an outcome falling outside the principled range of outcomes.”
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).

                                         B. ANALYSIS

        MCR 2.313(D)(1) provides that if a party fails to appear for a deposition or fails to serve
answers to interrogatories, “on motion, the court in which the action is pending may order such
sanctions as are just. Among others, it may take an action authorized under subrule (B)(2)(a),
(b), and (c).” Subrule (B), in turn, details various sanctions the trial court may impose, which
includes dismissal.

        Before selecting the sanction of dismissal, the trial court should consider the following
factors:



                                                -1-
               (1) Whether the violation was wilful or accidental; (2) the party’s history
       of refusing to comply with discovery requests (or refusal to disclose witnesses);
       (3) the prejudice to the other party; (4) actual notice to the other party of the
       witness and the length of time prior to trial that the other party received such
       actual notice; (5) whether there exists a history of the party’s engaging in
       deliberate delay; (6) the degree of compliance by the party with other provisions
       of the court’s order; (7) an attempt by the party to timely cure the defect, and (8)
       whether a lesser sanction would better serve the interests of justice. [Bass v
       Combs, 238 Mich App 16, 26-27; 604 NW2d 727 (1999), overruled in part on
       other grounds 481 Mich 618 (2008).]

 “The record should reflect that the trial court gave careful consideration to the factors involved
and considered all its options in determining what sanction was just and proper in the context of
the case before it.” Id. at 26. Because dismissal is considered a drastic sanction, the “trial court
is required to carefully evaluate all available options on the record and conclude that the sanction
of dismissal is just and proper.” Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280
(1995); Brenner v Kolk, 226 Mich App 149, 163; 573 NW2d 65 (1997); VandenBerg v
VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998).

        In this case, the trial court dismissed the action without articulating an analysis of the
factors listed above. The court never mentioned Bass nor its progeny. The court’s singular
finding was that “[t]here has been willful violation of every court order for discovery that I have
entered in this case.” When plaintiff informed the court that he missed the depositions because
he was incarcerated, and submitted proof of incarceration, the trial court merely replied: “I don’t
know that that’s accurate.” The record does not “reflect that the trial court gave careful
consideration to the factors involved. . . .” Bass, 238 Mich App at 26.1

        In addition, because of this failure, we are left to speculate whether any alternate
sanctions of a less drastic nature were available to the trial court. Vicencio, 211 Mich App at
506. The trial court did not “carefully evaluate all available options on the record and conclude
that the sanction of dismissal is just and proper.” Id. The trial court summarily imposed the
harshest sanction—dismissal—with no supporting analysis or reasoning. Even after the motion
for reconsideration was filed, the trial court again provided no analysis or reasoning, but merely
affirmed its prior ruling.

        Although the trial court did not indicate the factors it considered or specify its
consideration of lesser sanctions as required, the record evidence demonstrates that the trial
court’s efforts to resolve the ongoing discovery disputes were quite generous. The trial court
should take the opportunity to articulate its reasoning behind its determination to dismiss the
case, including the lesser sanctions that it considered, on the record.




1
  While the trial court referenced an unpublished opinion of this Court, it provided no actual
analysis of or explanation of similarity.


                                                -2-
                                        II. CONCLUSION

        Because the trial court failed to evaluate the relevant factors or consider lesser sanctions,
it abused its discretion in dismissing the case. We remand for further consideration consistent
with this opinion. We retain jurisdiction.




                                                              /s/ Michael J. Riordan
                                                              /s/ Henry William Saad
                                                              /s/ Michael J. Talbot




                                                -3-
                               Co urt of Ap peals, State of Michigan

                                                 ORDER
                                                                                 Michael J. Riordan
Culley Stroman v Citizens Insurance Compan y of America                            Presiding Judge

Docket No.     12-009954-NF                                                      Henry William Saad

LC No.         3 18004                                                           Michael J. Talbot
                                                                                   Judges


               Pursuant to the opinion issued concurrently with this order, thi s case is REMANDED for
further proceedings consiste nt w ith the opinion o r this Cou rt. We retain juri sd iction.

              The proceedings on remand shall be concluded within 56 days after the date this order is
issued. As stated in the o pini on, Stroman v Citizens Insurance Company of America, unpublished
opinion per curiam of the Court of Appeals (Docket No . 318004), the trial court is ordered to articulate
its reasoning behind its determination to dismi ss the case, including the lesser sanctions that it
considered. The proceed ings on remand are limited to those issues.

              The parties shall promptly fi le w ith thi s Court a copy o f all papers fil ed on remand.
Within seven days after e ntry, appellant shall fil e with this Court copies of all orders entered on remand.

                The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completi on of the proceed ings.




                          J\ true copy e ntered and cert ifi ed by Jerome W. Z immer Jr. , Chief C lerk , on




                                  DEC 09 2014
                                          Date
