Evan Khudhur v. Donna Marie Lemley ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
EVAN KHUDHUR, UNPUBLISHED
December 20, 2018
Plaintiff-Appellant,
v No. 341689
Oakland Circuit Court
DONNA MARIE LEMLEY, LC No. 2016-155906-NI
Defendant-Appellee.
Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
PER CURIAM.
Plaintiff, Evan Khudhur, appeals an order granting defendant, Donna Marie Lemley’s,
motion for summary disposition under MCR 2.116(C)(10). We affirm.
While driving her vehicle on June 27, 2016, defendant struck the passenger side door of
plaintiff’s vehicle. The Madison Heights Police Department responded to the accident. A police
officer asked plaintiff if he needed to go to the hospital, but he declined because his daughter was
crying in the backseat. On a scale of zero through seven regarding the level of damage to
plaintiff’s car, the police officer noted on the police report the damage as a two.
On November 7, 2016, plaintiff filed a third-party action against defendant, alleging
negligence and violations of the Michigan Vehicle Code, MCL 257.1 et seq., and the no-fault
act, MCL 500.3101 et seq. Plaintiff alleged that, as a result of defendant’s negligence, plaintiff
suffered severe bodily injury, aggravation of preexisting conditions, inability to render services,
and loss of consortium. Plaintiff further alleged that his injuries prevented him from earning
money as he did before the accident. On December 8, 2017, defendant filed an answer to
plaintiff’s complaint and generally denied liability.
On October 10, 2017, after the close of discovery, defendant filed a motion for summary
disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). In defendant’s brief in
support of the motion for summary disposition, she argued that plaintiff failed to prove a serious
impairment of a bodily function. Defendant argued that plaintiff waited over a week to seek
treatment for his injuries from the accident, and even then only sought physical therapy.
Additionally, plaintiff’s MRI results showed there was no serious injury. Defendant also argued
that plaintiff failed to show that his left leg injury resulted from the accident, and he also failed to
show that there was a serious impairment to his neck, back, left leg, and left shoulder. Defendant
claimed that plaintiff’s lifestyle had not changed because plaintiff testified at his deposition that,
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as a result of a previous leg injury, he was not very active and had not worked in the past 10
years. Additionally, a surveillance video showed plaintiff carrying his daughter to the car and
bending to pick her up, demonstrating that plaintiff walked without difficulty.
On October 11, 2017, the trial court entered a scheduling order regarding defendant’s
motion for summary disposition. In the scheduling order, the trial court stated that plaintiff’s
response brief must be received by the trial court by November 8, 2017, and that the hearing was
scheduled for November 22, 2017. The scheduling order also required the parties to file briefs in
support of and in opposition to all dispositive motions, in accordance with MCR 2.119(E)(3).1
On November 20, 2017, the trial court entered an order granting defendant’s motion for
summary disposition. In the order, the trial court noted that plaintiff failed to file a response to
defendant’s motion for summary disposition. The trial court stated:
The Plaintiff failed to present any opposition to the motion, thereby failing
to show that the threshold has been met and failing to prove the existence of a
genuine issue for trial. In looking at the evidence in the light most favorable to
the Plaintiff, summary disposition is granted in favor of the Defendant pursuant to
MCR 2.116(C)(10).
On November 22, 2017, plaintiff filed a motion for reconsideration. In the motion,
plaintiff stated that on October 10, 2017, he received notice, through the electronic filing
(“efile”) service, of defendant’s motion for summary disposition and that the notice of hearing
stated the hearing date would be set by the trial court. Plaintiff also stated that he never received
the notice of hearing from the trial court or through the efile service. In plaintiff’s brief in
support, he argued that the trial court should grant his motion for reconsideration because he did
not receive notice of the scheduling order. Plaintiff then argued that summary disposition was
inappropriate because there was a question of fact regarding whether plaintiff’s injuries met the
serious impairment threshold.
On December 6, 2017, the trial court entered an order denying plaintiff’s motion for
reconsideration. The trial court noted that plaintiff’s complaint was stamped with the following
notice: “This case has been designated as an eFiling case. To review a copy of the Notice of
Mandatory eFiling visit www.oakgov.com/clerkrod/Pages/efling [sic].”2 The trial court also
provided part of The Notice of Mandatory eFiling: “Judges issue opinions and orders
electronically. All filers must register as a Service Contact through Odyssey File and Serve. If
you fail to register, you will not receive copies of orders issued by the Court[.]” The trial court
noted that plaintiff failed to register as a service contact until October 17, 2017. However, the
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MCR 2.119(E)(3) states: “A court may, in its discretion, dispense with or limit oral arguments
on motions, and may require the parties to file briefs in support of and in opposition to a
motion.”
2
In the trial court’s order denying plaintiff’s motion for reconsideration, the trial court provided
an incorrect URL. The correct URL is www.oakgov.com/clerkrod/Pages/efiling.
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trial court noted that defendant still sent three “courtesy copies” of motions to plaintiff because
plaintiff failed to register as a service contact.
In its order, the trial court also noted that plaintiff argued his motion for reconsideration
should be granted to correct the court’s mistake, but plaintiff did not state what the court’s
mistake was. Regardless, the trial court investigated the record to ensure that it was not at fault
for any clerical mistake, and it concluded that plaintiff waited a year after the case commenced to
register as a service contact. The trial court further stated that plaintiff did not argue that he was
entitled to relief under MCR 2.612(C). Instead, plaintiff only moved for reconsideration under
MCR 2.119(F). The trial court denied plaintiff’s motion for reconsideration because plaintiff
failed to establish “palpable error by which the court and the parties have been misled . . . and
that a different disposition of the motion must result from correction of that error” under MCR
2.119(F)(3).
Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition, and in denying the motion for reconsideration, because he never received the
summary disposition scheduling order with the relevant filing dates. We disagree.
“A trial court may grant a motion for summary disposition under MCR 2.116(C)(10)
when the affidavits or other documentary evidence, viewed in the light most favorable to the
nonmoving party, show that there is no genuine issue as to any material fact and the moving
party is therefore entitled to judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500
Mich. 1, 5; 890 NW2d 344 (2016). This Court reviews de novo a trial court’s decision on a
motion for summary disposition under MCR 2.116(C)(10). Clohset v No Name Corp, 302 Mich
App 550, 559; 840 NW2d 375 (2013). Generally, this Court reviews a trial court’s determination
to decline to entertain motions or briefs for an abuse of discretion. Kemerko Clawson LLC v
RXIV Inc, 269 Mich. App. 347, 349; 711 NW2d 801 (2005). This Court also reviews a trial
court’s decision on a motion for reconsideration for an abuse of discretion. K & W Wholesale,
LLC v Dep’t of Treasury, 318 Mich. App. 605, 611; 899 NW2d 432 (2017). “An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes.” Frankenmuth Ins Co v Poll, 311 Mich. App. 442, 445; 875 NW2d 250
(2015).
A trial court has the authority to issue a scheduling order when “the court concludes that
such an order would facilitate the progress of the case.” MCR 2.401(B)(2)(a). The trial court
has the discretion to enforce its scheduling order. Edi Holdings LLC v Lear Corp, 469 Mich.
1021; 678 NW2d 440 (2004). Similarly, the trial court has the discretion of whether to consider
untimely documents. Flanagin v Kalkaska Co Rd Comm, 319 Mich. App. 633, 640; 904 NW2d
427 (2017).
Throughout the majority of the case, plaintiff was not registered as a service contact, as
required by Oakland Circuit Court Administrative Order 2010-3, and defendant, on three
occasions, mailed physical copies of different motions to plaintiff. Finally, defendant filed her
motion for summary disposition on October 10, 2017, and, on that same day, she informed
plaintiff that he had not registered as a service contact through the efile system. Plaintiff did not
immediately register, and on October 11, 2017, the trial court entered a scheduling order
detailing the deadlines regarding defendant’s motion for summary disposition. Plaintiff delayed
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for almost another week before he registered as a service contact on October 17, 2017. Due to
his failure to properly register as a service contact through the efile system, plaintiff did not
receive the scheduling order. With that said, plaintiff had ample notice and opportunity to
comply with the trial court’s efiling system.
Plaintiff inaccurately maintains that he was not provided notice of the scheduling order
because of a “glitch” in the efile system. In actuality, plaintiff was not receiving notifications
because he did not register as a service contact. Defendant warned plaintiff that he was not
registered on the same day that defendant’s motion for summary disposition was filed. Thus,
there was no excuse for defendant to wait 41 days without taking any actions to determine the
relevant scheduling dates after the motion was filed. While the notice of hearing submitted with
defendant’s motion indicated that the trial court would select a hearing date at a future time,
plaintiff was nonetheless on notice that a hearing date was forthcoming. With this
understanding, it would be reasonable to contact either the trial court or opposing counsel to
inquire whether a hearing date had been selected, or at the very least check the electronic register
of actions. Instead, plaintiff registered through the efile system but took no actions to determine
any overlooked filings, and after 41 days of inactivity, the trial court granted defendant’s motion
for summary disposition for the failure to submit a response and raise a genuine issue of material
fact sufficient to survive summary disposition. Plaintiff’s issue on appeal arose because of his
own inattention, and the trial court’s refusal to accept a late response from plaintiff and to rule on
the motion for summary disposition does not constitute an abuse of discretion.
Plaintiff also argues that defendant failed to ask for a concurrence in the motion, which
would have alerted plaintiff that a response was required. This argument, however, overlooks
the fact that plaintiff admits on appeal that he was put on notice the day defendant served a copy
of the motion for summary disposition through the efile system and that defendant informed
plaintiff that he was not registered. Therefore, plaintiff was accountable for checking the efile
system for any scheduling orders, and even more, he was aware that a response to the motion for
summary disposition would be required. Therefore, this argument is without merit.
Plaintiff further argues that the trial court erred in failing to consider a less severe
sanction for the untimely brief, or even an adjournment of the hearing date. However, the trial
court was under no obligation to consider any lesser sanction. Kemerko, 269 Mich. App. at 352-
353. The trial court did not grant defendant’s motion for summary disposition as a sanction
against plaintiff for failing to submit a response. The trial court granted the motion for summary
disposition because plaintiff failed to prove the existence of a genuine issue of fact, stating:
The Plaintiff failed to present any opposition to the motion, thereby failing to
show that the threshold has been met and failing to prove the existence of a
genuine issue for trial. In looking at the evidence in the light most favorable to
the Plaintiff, summary disposition is granted in favor of the Defendant pursuant to
MCR 2.116(C)(10).
Therefore, plaintiff’s argument is without merit.
Finally, plaintiff argues that he should not be held accountable for his counsel’s mistake.
Plaintiff asserts that this Court should reverse the trial court’s grant of summary disposition
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based on MCR 2.612(C), which states that “the court may relieve a party . . . from a final
judgment, order, or proceeding on the following grounds: mistake, inadvertence, surprise, or
excusable neglect.” MCR 2.612(C)(1)(a); see also Fisher v Belcher, 269 Mich. App. 247, 262;
713 NW2d 6 (2005). Reversal of the trial court’s grant of defendant’s motion for summary
disposition is not warranted under MCR 2.612(C)(1)(a). As discussed above, plaintiff’s failure
to submit a timely response was completely of his own making: there was the initial failure to
register as a service contact, and then the subsequent failure to ascertain the hearing date even
though defendant informed plaintiff of the failure to register and of the electronic filing of the
motion for summary disposition. Plaintiff received the motion for summary disposition, which
indicated that the hearing date would be set by the trial court, and it is neither a mistake nor
excusable neglect for plaintiff to have done nothing to ascertain the dates for filing and the
hearing. The trial court did not err when it granted defendant’s motion for summary disposition
and denied plaintiff’s motion for reconsideration.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron
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