Dismissal of the case with prejudice as a sanction; Failure to consider lesser sanctions; Vicencio v. Ramirez; VandenBerg v. VandenBerg; Kalamazoo Oil Co. v. Boerman

Holding that the trial court abused its discretion because it failed to evaluate the Vicencio factors and all available options in determining an appropriate sanction, the court reversed the order dismissing plaintiff’s no-fault insurance case, and remanded. After she and her attorney “failed to appear at a mandatory settlement conference, the trial court held that this missed appearance, coupled with plaintiff counsel’s failure to attend case evaluation and certain depositions of key witnesses, warranted dismissal.” The court tended to agree with plaintiff that the trial court “should have, at least, considered other options on the record.” The record showed that it failed to “carefully evaluate several relevant Vicencio factors or adequately explain why the conduct attributed to plaintiff’s counsel warranted dismissal of plaintiff’s case with prejudice when lesser sanctions were available.” It did not address whether she “had a history of failing to comply with court orders” and the record did not support defendant’s claim that the trial court ordered her attorney to attend the case evaluation. While the scheduling order required both she and her attorney “to attend the settlement conference, the trial court explicitly stated that it did not consider tardiness a basis for dismissal. Although plaintiff counsel’s apparent failures in accurately maintaining his calendar and informing opposing counsel when he did not plan to appear as expected at the case evaluation or certain depositions was unprofessional, these are failures of common courtesy and professionalism. They do not amount to a violation of a court order.” Further, there was no significant prejudice to defendant’s case and “the trial court did not address why it believed that monetary sanctions would not adequately serve” the interest of justice. The court noted it did not condone plaintiff’s attorney’s actions or rule out the possibility dismissal was warranted. But because the trial court failed to evaluate the Vicencio factors or “consider all of its options before taking the drastic step of dismissal,” it reversed and remanded for the trial court to “carefully consider and apply the Vicencio factors, explaining its determination on the record.”