Robert Lee v. Liberty Mutual Insurance Company

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT LEE, UNPUBLISHED
September 22, 2022
Plaintiff-Appellant,
v No. 355967
Wayne Circuit Court
LIBERTY MUTUAL INSURANCE COMPANY, LC No. 18-004163-NI
Defendant,
and
RACHEL ANNE ALMEIDA,
Defendant-Appellee.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
Plaintiff, Robert Lee, appeals by right following the trial court’s dismissal of his third-party
automobile negligence claim against defendant Rachel Anne Almeida. We affirm.
I. BACKGROUND
This matter arises out of an automobile accident in which defendant’s vehicle struck
plaintiff’s vehicle. The parties dispute the reasons for the collision and the extent to which
plaintiff’s present medical issues were caused by the accident. The details are, however, irrelevant
to this appeal. Following plaintiff’s settlement with former defendant Liberty Mutual Insurance
Company, plaintiff’s relationship with his original attorneys broke down, and the trial court
permitted plaintiff’s attorneys to withdraw. Despite repeated admonitions from the trial court that
plaintiff would need to comply with procedural and substantive laws and rules, as well as strong
recommendations to acquire substitute counsel, plaintiff thereafter proceeded in propria persona.
Plaintiff rejected a settlement offer from defendant, and much of his participation below was either
incoherent or reflective of a fundamental failure to understand his obligations as a litigant.
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Specific to this appeal, the trial court entered an order on August 14, 2020, that
unambiguously required plaintiff to submit a proposed final pretrial order by October 16, 2020, or
he would face sanctions ranging from exclusion of evidence to dismissal. Plaintiff failed to comply
with the order, which he explained was because he “had a nervous breakdown,” that he was “going
through some mental stress,” that his “computer was in storage and it all got rusted,” and that he
had various other physical and mental ailments. The trial court reminded plaintiff that it was
plaintiff’s duty “to comply with the rules of the court if you decide to represent yourself.”
Defendant informed the court that she intended to move to dismiss, and the trial court informed
plaintiff that he would need to respond to that motion in a timely manner. Following defendant’s
motion to dismiss, plaintiff responded by filing several documents that are largely incoherent.
Plaintiff never did provide anything resembling the required final pretrial order. The trial court
granted defendant’s motion to dismiss the case with prejudice, and defendant now appeals.
Plaintiff continues to represent himself.
II. STANDARD OF REVIEW AND PRINCIPLES OF LAW
Pursuant to MCR 2.504(B)(1), if a party fails to comply with a court’s order, the court is
empowered to enter a default against that noncompliant party or dismiss that noncompliant party’s
action. We review for an abuse of discretion a trial court’s dismissal of a case because a litigant
failed to comply with the court’s orders. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006). An abuse of discretion occurs when the trial court selects an outcome outside
the range of available reasonable and principled outcomes. Id. Dismissal is a drastic sanction that
should not be taken unless the trial court has carefully determined on the record that dismissal is
just and proper under the circumstances, and that no appropriate lesser sanctions are available.
Vicencio v Ramirez, 211 Mich App 501, 506-507; 536 NW2d 280 (1995). Nonetheless, the trial
court “has basic responsibility for enforcement of [its] own decree and considerable discretion in
the means to be employed.” Butler v Butler, 356 Mich 607, 618; 97 NW2d 67 (1959).
Parties appearing in propria persona are entitled to lenity in construing their pleadings and
draftings; however, they are not excused from supporting their claims. Estelle v Gamble, 429 US
97, 106-108; 97 S Ct 285; 50 L Ed 2d 251 (1976). Furthermore, parties who elect to represent
themselves must respect “the dignity of the courtroom” and must “comply with relevant rules of
procedural and substantive law.” Faretta v California, 422 US 806, 834 n 46; 95 S Ct 2525; 45 L
Ed 2d 562 (1975). On appeal, parties “acting in propria persona should be held to the same
standards as members of the bar.” Totman v Royal Oak Sch Dist, 135 Mich App 121, 126; 352
NW2d 364 (1984). Thus, a litigant who decides to proceed without counsel is “bound by the
burdens that accompany” that decision. Hoven v Hoven, 9 Mich App 168, 174; 156 NW2d 65(1967). “It is not enough for an appellant in his brief simply to announce a position or assert an
error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel
and elaborate for him his arguments, and then search for authority either to sustain or reject his
position. The appellant himself must first adequately prime the pump; only then does the appellate
well begin to flow.” Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
III. ARGUMENTS ON APPEAL
We first note that much of plaintiff’s brief is incoherent, disjointed, and seemingly
addresses matters unrelated to the trial court’s dismissal of the case. For example, he discusses
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conspiracy, for no reason that we can discern, and he asserts that there is no factual dispute
regarding his injury. Plaintiff’s request for relief, to the extent it is comprehensible, appears to be
for an investigation and for some kind of damages, including the cost of office supplies. The
underlying facts are not at issue at this time. Rather, at issue is the propriety of the trial court’s
dismissal of the action because plaintiff failed to comply with a court order. None of the relief
formally sought by plaintiff could be granted by this Court at this time, irrespective of the merits
of the appeal. The only relief we could provide, in principle, would be to order reinstatement of
his case. Mindful of our duty to construe with lenity the submissions of parties appearing in
propria persona, we choose to construe plaintiff’s brief as merely an inartful request for that relief,
and we will address, to the extent we can understand it, any argument made in support of that
relief.
By inference from plaintiff’s references to the Equal Employment Opportunity
Commission (EEOC), the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the
Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., the gravamen of
plaintiff’s argument on appeal seems to be that he suffers from a number of disabilities that should
have entitled him to some kind of lenity excusing noncompliance with the court’s orders and rules
of procedure. Although we express or imply no opinion whatsoever as to their genesis or severity,
we do not doubt that plaintiff genuinely suffers from a variety of ailments. Although plaintiff did
bring his medical issues to the trial court’s attention, it does not appear that plaintiff ever presented
any arguments to the trial court specifically referencing the EEOC, the ADA, or the PWDCRA.
“Trial courts are not the research assistants of the litigants; the parties have a duty to fully present
their legal arguments to the court for its resolution of their dispute.” Walters v Nadell, 481 Mich
377, 388; 751 NW2d 431 (2008). Plaintiff also makes no coherent argument on appeal. Mitcham,
355 Mich at 203. We could, therefore, construe this argument as both unpreserved and abandoned.
Nevertheless, the conceivably relevant provisions of the ADA and the PWDCRA generally
forbid public services or accommodations from denying individuals full access to or enjoyment of
services and facilities on the basis of a disability. MCL 37.1302; 42 USC § 12132.1 There is no
evidence that the trial court committed any such impropriety. Rather, the trial court repeatedly
and patiently explained to plaintiff that he would be expected to follow the same substantive and
procedural rules as a lawyer, and it strongly recommended that plaintiff obtain replacement
counsel. Moreover, plaintiff actively participated in the litigation, including by filing multiple
documents and appearing at court hearings. The record does not support any argument that
plaintiff was denied access to the courts on the basis of a disability or that there was any reason
why he should have been entitled simply to disregard a court’s order. We note also that plaintiff
has made several requests for appointed counsel. However, the trial court correctly explained to
plaintiff that civil litigants have no right to appointed or assigned counsel. That plaintiff was not
capable of handling the burdens of representing himself, a fact that should have been readily
apparent to him, does not establish that he was wronged by the trial court or by opposing counsel.
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As defendant points out, the EEOC has no relevance here, because plaintiff was not employed
by the trial court.
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We conclude that plaintiff has not advanced any coherent, meritorious argument on appeal.
IV. PROPRIETY OF DISMISSAL
Nevertheless, still mindful of our duty to treat litigants appearing in propria persona with
as much lenity as possible, we will consider the actual issue in this appeal of whether the trial court
properly dismissed the case. The following nonexhaustive list of factors should be considered
when deciding whether to impose the sanction of dismissal:
(1) whether the violation was wilful or accidental; (2) the party’s history of refusing
to comply with previous court orders; (3) the prejudice to the opposing party; (4)
whether there exists a history of deliberate delay; (5) the degree of compliance with
other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a
lesser sanction would better serve the interests of justice. [Vicencio, 211 Mich App
at 507.]
Here, the trial court appropriately noted the lengthy procedural history of this matter. It noted that
plaintiff had a pattern of making arguments that were difficult to understand and filing documents
that were incomprehensible and not obviously responsive or appropriate to the matters at hand.
Plaintiff was repeatedly and patiently advised to obtain substitute counsel, and the trial court even
provided plaintiff with a Detroit Bar Association list of attorneys. Plaintiff failed to comply with
other discovery matters, such as failing to provide documentary support for his purported need for
surgery; he made various impermissible requests, such as an apparent request to reopen discovery;
and, at one point, he apparently moved to stay or quash a motion by defendant that the trial court
had actually denied several months earlier. Despite the trial court’s patience, plaintiff proved
highly disruptive to the orderly proceeding of the case. Even before the withdrawal of plaintiff’s
counsel, plaintiff had a history of engaging in behavior that made the litigation more difficult, such
as by refusing to cooperate in signing the draft check for the first-party no-fault settlement with
Liberty Mutual, to which he had already agreed.
Against that backdrop, on August 14, 2020, the trial court entered an order that required
plaintiff to file a proposed joint final pretrial order by October 16, 2020. The August 14, 2020
order expressly stated that claims could be dismissed for failure to comply with the order.
Although defendant’s counsel provided plaintiff with language for the portion of the order
summarizing defendant’s positions, plaintiff failed to file the proposed joint final pretrial order by
October 16, 2020. At an October 21, 2020 hearing, defendant’s counsel indicated that he was
preparing a motion to dismiss. The court again reminded plaintiff that he was required to comply
with the court’s directives and that he should file a response to defendant’s forthcoming motion to
dismiss. After the motion to dismiss was filed, plaintiff failed to file a response addressing that
motion. Plaintiff did file certain documents in November and December of 2020 that may have
comprised efforts to provide a pretrial statement; however, the documents did not contain the
content required by the August 14, 2020 order, and the documents contained assertions about
subjects unrelated to the case. At the December 18, 2020 hearing, the trial court dismissed the
case due to plaintiff’s failure to comply with the August 14, 2020 order.
Plaintiff was specifically warned by bold language in the August 14, 2020 order that
dismissal could result from failure to comply with its terms, but plaintiff nonetheless did not
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comply. His refusal to comply with the order can therefore reasonably be viewed as willful. See
Woods v SLB Property Mgmt, LLC, 277 Mich App 622, 631; 750 NW2d 228 (2008) (“Plaintiff
was well aware of the trial court’s order requiring him to file an amended complaint within 14
days. Therefore, his refusal to file his amended complaint on time and in the proper format
constituted a willful violation of the court order.”). His failure to provide a proposed order with
comprehensible information about, e.g., his claim, witnesses, and exhibits was prejudicial to
defendant. See id. (stating that the defendant would have been prejudiced by the failure to dismiss
the case because the plaintiff’s amended complaint was incomprehensible). Plaintiff had a history
of engaging in behavior that made the litigation more difficult, including by refusing to cooperate
in signing the draft check for the first-party no-fault settlement to which he had already agreed as
well as failing to provide documentary support for his purported need for surgery.
Despite plaintiff’s violation and history of straining the trial court’s docket, the court did
not immediately dismiss the matter upon learning of plaintiff’s violation of the August 14, 2020
order; the case remained pending for almost two more months. Nevertheless, plaintiff failed to
cure the defect. The documents he filed in that time period did not comprise a coherent proposed
joint final pretrial order. Plaintiff was given ample opportunity to comply with the court’s
directives. However, he made no real progress in doing so and displayed no sign that he would
ever be capable of doing so. There was no indication that any lesser sanction would have been
effective in these circumstances. Accordingly, the trial court’s dismissal of the case fell within the
range of principled outcomes.
Affirmed. Because plaintiff has been determined to be indigent, we direct that the parties
shall bear their own costs on appeal. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
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