Arthur Merriweather v. Michael Ellison

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
ARTHUR MERRIWEATHER, UNPUBLISHED
March 14, 2019
Plaintiff/Counterdefendant,
v No. 340547
Oakland Circuit Court
MICHAEL ELLISON and WENDEME LC No. 2017-158325-AV
ENTERTAINMENT, LLC, doing business as
WENDEME CREATIVE,
Defendants/Counterplaintiffs,
and
KIMBERLY WARD,
Other Party-Appellant,
and
PHILLIP A. RAGAN, JR.,
Other Party,
and
RAMONA P. DESALVO,
Other Party-Appellee.
ARTHUR MERRIWEATHER,
Plaintiff/Counterdefendant,
v No. 342583
Oakland Circuit Court
MICHAEL ELLISON, LC No. 2017-158325-AV
Defendant/Counterplaintiff-
Appellee,
and
WENDEME ENTERTAINMENT, LLC, doing
business as WENDEME CREATIVE,
Defendant/Counterplaintiff,
and
KIMBERLY WARD,
Other Party,
and
PHILLIP A. RAGAN, JR.,
Other Party-Appellant,
and
RAMONA P. DESALVO,
Other Party-Appellee.
Before: BORRELLO, P.J., and SWARTZLE and CAMERON, JJ.
PER CURIAM.
In these consolidated appeals, appellants, Kimberly Ward and Philip A. Ragan, Jr., appeal
by leave granted1 the circuit court’s order granting the motion of appellee, Ramona P. DeSalvo,
to dismiss Ward and Ragan’s appeal from a district court judgment granting defendants’ motion
for sanctions. We vacate the circuit court’s order and remand for further proceedings.
1
Merriweather v Ellison, unpublished order of the Court of Appeals, entered March 28, 2018
(Docket No. 340547); Merriweather v Ellison, unpublished order of the Court of Appeals,
entered March 28, 2018 (Docket No. 342583).
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I. BACKGROUND
Appellants are attorneys who successively represented plaintiff, Arthur Merriweather, in
a breach-of-contract action that he filed against defendants, Michael Ellison and Wendeme
Entertainment, LLC, in the district court. Plaintiff alleged that he worked with defendants to
create two music albums and that defendants breached an oral agreement for payment. In 2012,
plaintiff voluntarily dismissed his claim. The district court granted defendants’ request for
sanctions and awarded them $50,885.37 in attorney fees against Ward, Ragan, and plaintiff.
Although the parties filed a motion for reconsideration from the district court’s order awarding
sanctions in 2012, and despite the parties’ repeated requests for a ruling, the district court failed
to rule on the motion for reconsideration until 2017, when it denied the motion. In the meantime,
defendants had assigned the sanctions award to DeSalvo, who represented them in plaintiff’s
action.
Ward and Ragan appealed the district court’s order awarding sanctions to the circuit
court. On appeal to the circuit court, the delay in the district court’s ruling on the motion for
reconsideration caused confusion regarding five-year-old court records. The circuit court twice
dismissed the appeal for deficiencies and noncompliance with the court rules and twice granted
motions to correct the deficiencies and reinstate the appeal. The circuit court dismissed the
appeal, for a third time, on the grounds that Ward and Ragan failed to give required notice of the
appeal under MCR 7.104(D)(9) to DeSalvo. The record, however, indicates that Ward and
Ragan did not receive correspondence from DeSalvo directing them to serve her with process,
rather than defendants, because of the assignment of the sanctions award. Ward and Ragan now
appeal to this Court, arguing that the circuit court abused its discretion by dismissing the appeal
for failure to provide notice to DeSalvo.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews a circuit court’s decision to dismiss an appeal for an abuse of
discretion. Smith v Merrill Lynch Pierce Fenner & Smith, 155 Mich. App. 230, 233-234; 399
NW2d 481 (1986). A trial court abuses its discretion when its decision is “outside the range of
reasonable and principled outcomes.” Saffian v Simmons, 477 Mich. 8, 12; 727 NW2d 132
(2007).
B. DISMISSAL AS A SANCTION
Ward and Ragan argue that the circuit court improperly dismissed their appeal on mere
technical grounds. Ward and Ragan contend that, although they failed to give the proper notice
under MCR 7.104(D)(9), DeSalvo nonetheless received actual notice and was not prejudiced by
the deficiency. We agree that the circuit court abused its discretion by dismissing the appeal.
MCR 7.101 et seq. addresses appeals to the circuit court. Along with a claim of appeal,
an appellant must file “proof that a copy of the claim of appeal and other documents required by
this subrule were served on all parties, the trial court or agency, and any other person or officer
entitled by law to notice of the appeal.” MCR 7.104(D)(9). In light of our conclusion that
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dismissal of the appeal was unwarranted, we assume without deciding that DeSalvo, as an
assignee, is entitled to notice of appeal under MCR 7.104(D)(9).
Failure to comply with the initial-filing rules will result in the trial court’s notification to
“the parties that the appeal shall be dismissed unless the deficiency is remedied within 14 days
after service of the notice.” MCR 7.113(A)(1). Even if a trial court dismisses an appeal,
however, an “appellant may move for reinstatement by showing mistake, inadvertence, or
excusable neglect” for failure to comply with the court rules, if the appellant files the motion
within 14 days of the dismissal. MCR 7.113(A)(2).
It is well established in our caselaw that dismissal of an appeal is an extreme sanction that
should not be imposed when no prejudice has resulted. For example, in Simpson v Mansfield, C
& LMR Co, 38 Mich. 626, 629 (1878), our Supreme Court noted that “it has always been held by
this court that the failure of the appellant to give notice of the appeal did not entitle the appellee
to a dismissal as a matter of right.” In that case, the Supreme Court stated that the purpose of
giving notice was “to inform the adversary party that the appeal has been taken that he may
prepare for it; but as he must also have notice of hearing, he is not likely to lose any rights by a
failure in giving strict notice.” Id. (emphasis added).
Similarly, in Totman v Royal Oak Sch Dist, 135 Mich. App. 121, 122-123; 352 NW2d 364
(1984), this Court held that the circuit court erred in dismissing an appeal on the ground that the
appellant adopted as his brief a dissenting opinion from the “certified record” of the Michigan
Employment Security Commission, rather than a brief that met the requirements of the court
rules then in effect. When holding that the circuit court abused its discretion in dismissing the
appeal, this Court stated that the dismissal was a “harsh penalty,” that the dissenting opinion
adopted by the appellant met all the requirements for a brief, and that, if properly labeled, the
dissenting opinion would have complied with the rules. Id. at 126. This Court reasoned that the
court rules “wisely contemplated that litigants and lawyers might make such errors without
suffering the cataclysmic consequences of having a case dismissed without a hearing on the
merits.” Id. This Court concluded that the circuit court’s “punishment was out of proportion to
the crime.” Id. at 127. We have held similarly in other decisions. See Smith, 155 Mich. App. at
232-234 (applying Totman and holding that dismissal of the appeal for failure to file a brief
within the allotted time was “too harsh a remedy”); Cody v Wickman, Inc, 137 Mich. App. 560,
565-567; 358 NW2d 372 (1984) (holding that the plaintiff’s mislabeled complaint, although
technically not in compliance with the court rules, nonetheless was sufficient to vest the circuit
court with jurisdiction to hear the appeal because it stated the action that was being brought, gave
a sufficient recitation of the facts, gave the defendants notice, and did not prejudice the
defendants).
The principles espoused in Simpson, Smith, Totman, Cody, and other decisions convince
us that dismissal of Ward and Ragan’s appeal was too harsh a punishment for the failure to serve
proper notice on DeSalvo. DeSalvo produced no evidence to show that the failure was
“intentional or flagrant.” Smith, 155 Mich. App. at 232-234. Moreover, DeSalvo received actual
notice, and she was able to prepare. Therefore, there was no prejudice to DeSalvo’s rights. See
Totman, 135 Mich. App. at 126-127. Finally, other, less extreme remedies existed to cure any
inconvenience or costs to DeSalvo. Smith, 155 Mich. App. at 232-234.
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We vacate the circuit court’s decision and remand for further proceedings consistent with
this opinion. On remand, the circuit court may consider whether a less extreme sanction, such as
an award of additional attorney fees, is appropriate under the facts of this case. We do not retain
jurisdiction.
/s/ Stephen L. Borrello
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
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