Third-party no-fault case; Dismissal based on failure to timely appear at trial without first considering other available sanctions on the record; Dean v Tucker; Vicencio v Ramirez; “Judicial dictum”

Holding in this third-party no-fault action that the trial court erred when it dismissed plaintiff’s case based on her failure to timely appear at trial without first considering other available sanctions, the court reversed and remanded. She contended that before the trial court dismissed “her case with prejudice, Michigan caselaw required the court to evaluate lesser available sanctions to determine whether they might have been more appropriate under the circumstances.” She primarily relied on Dean and Vicencio. Defendants pointed out that Dean “specifically involved a discovery violation, and this case does not.” Rather, this case involved “dismissal of an action on the basis of plaintiff’s failure to timely appear at trial.” She suggested that Vicencio resolved “the distinction by extending the Dean factors to cases beyond discovery violations.” Plaintiff contended that Vicencio required that the Dean “factors must be considered by trial courts prior to dismissing a case for reasons in addition to and other than discovery violations, including for a failure to appear at trial.” The court held that the trial court should have applied the Vicencio factors, “and that the trial court abused its discretion in failing to apply them both in its initial dismissal of plaintiff’s claim and its subsequent affirmation of the same on the basis of her motion to reinstate her case.” And it further held that, applying the Vicencio “factors, dismissal with prejudice of plaintiff’s case was a harsh penalty indeed.” While defendants pointed “out that plaintiff’s untimely appearance at trial was inexcusable, the record evidence simply does not establish that it was willful rather than accidental. Moreover, there was no history below of plaintiff having failed or refused to comply with court orders, having failed to appear at other times, or having caused deliberate delay.” There was no evidence that giving her additional time to arrive or that rescheduling “would have prejudiced defendants in anyway, and there was evidence that plaintiff attempted to cure the defect in that, at the very least, she did arrive at trial, albeit approximately one to two hours late.” Finally, the court found that “lesser sanctions might have been appropriate under the circumstances.”