Dismissal as a sanction. Vicencio v Ramirez; Dean v Tucker; Failure to appear for a mandatory pretrial settlement conference; MCR 2.401(G); MCR 2.504(B)(1) & (3); Whether plaintiff’s entire case was remanded to the trial court for a decision on the merits

Concluding that dismissal was too severe a sanction, the court vacated the trial court’s order dismissing plaintiff’s action “as a sanction following his failure to appear for a mandatory pretrial settlement conference” and remanded. In moving to set aside the order of dismissal, plaintiff attested via affidavit that, among other things, “he: received no prior actual notice of the scheduled pretrial settlement conference; has diligently, vigorously prosecuted the case for over 5 years, including appeals to this Court and Michigan Supreme Court, and would never knowingly miss any scheduled event or appearance[.]” On appeal, the court found that arguments could “be made that the trial court was incorrect or abused its discretion in reaching the” conclusions on which it relied, “which were arguably conclusory and/or not supported by the record[.]” But the court was “convinced that, even if the factors were analyzed correctly, the remedy selected by the trial court was not appropriate given the lengthy period of time the case has been litigated, the steady and committed prosecution of the claims by plaintiff in the trial court, the Court of Appeals, and the Supreme Court, and the absence of any pattern of disregard of the court’s prior orders.” But the court rejected plaintiff’s assertion that, based on “the preceding appellate decisions in this litigation, the trial court order of summary disposition was reversed, and [his] entire case was returned to the trial court for a decision on the merits.” Rather, the appellate court decisions’ plain language established “that the proceedings on remand to the trial court are limited to plaintiff’s claim for defendant’s breach of any oral agreement for splitting the proceeds of the sale of the . . . property that survived the parties’ 2015 execution of the warranty deed and a purchase agreement for that real property. Otherwise, plaintiff’s application for leave to appeal to the Supreme Court was denied and” the court’s 11/18/21 unpublished opinion affirming the trial court’s grant of summary disposition was the law of the case. On remand, the trial court must determine “what sanction, short of complete dismissal, should be imposed for plaintiff not attending” the settlement conference.