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
GEOFFREY N. FIEGER and FIEGER LAW, PC, UNPUBLISHED
January 14, 2020
Plaintiffs-Appellants/Cross-
Appellees,
v No. 344151
Grand Traverse Circuit Court
RICHARD K. GOODMAN, KATHLEEN J. LC No. 2017-032217-CZ
KALAHAR, GOODMAN KALAHAR, MARTIN
KNUDSEN, TINA TOKAR, and ZACHARY
ALLEN KOTT-MILLARD,
Defendants-Appellees/Cross-
Appellants,
and
DEAN A. ROBB, SR., and DEAN ROBB LAW
FIRM,
Defendants-Appellees,
and
ESTATE OF MICHAEL KNUDSEN, by
MICHAEL J. LONG, Personal Representative,
Defendant.
Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs, Geoffrey N. Fieger and Fieger Law, PC (“the Fieger firm”) (collectively, “the
Fieger parties”), filed suit against defendants, alleging various claims regarding a purported
conspiracy to construct a legal-malpractice claim against the Fieger parties. They now appeal as
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of right the trial court’s order dismissing the case as a sanction for violations of a scheduling-
conference order. Defendants Richard K. Goodman, Kathleen J. Kalahar, Goodman Kalahar,
Martin Knudsen (“Martin”), Tina Tokar, and Zachary Allen Kott-Millard (collectively, “cross-
appellants”) cross-appeal the same order. We affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
I. BACKGROUND
The Fieger parties’ claims arose from two legal-malpractice cases against them (“the
malpractice cases”). The underlying tort cases from which the malpractice cases were spawned
involved the electrocution and drowning death of Michael Knudsen (“Michael”) and the serious
personal injury of Kott-Millard (“the electrocution cases”). Those prior cases have resulted in
lengthy unpublished opinions issued by this Court. See Kott-Millard v Traverse City,
unpublished per curiam opinion of the Court of Appeals, issued June 5, 2014 (Docket Nos.
314971; 314975; 315043; 315044) (addressing the electrocution cases); Knudsen Estate v
Fieger, unpublished per curiam opinion of the Court of Appeals, issued March 5, 2019 (Docket
Nos. 341412; 341414) (addressing the malpractice cases).
In 2011, Michael jumped off a dock into the water at Clinch Marina, located in Grand
Traverse Bay. Michael drowned because of electricity leaking into the water from the dock, and
Kott-Millard was injured while trying to rescue him. Michael’s estate and Kott-Millard retained
defendants Dean A. Robb, Sr., and Dean Robb Law Firm (collectively, “the Robb parties”) to
represent them for tort claims regarding this matter, and retained the Fieger parties as co-counsel.
The Robb parties and the Fieger parties filed actions in Grand Traverse Circuit Court on behalf
of Michael’s estate and Kott-Millard against various municipal and related defendants. After
discovery, the circuit court granted summary disposition based on governmental immunity to all
of the defendants except for dockmaster Barry Smith, finding that a question of fact existed
regarding whether he was grossly negligent. This Court reversed the trial court’s denial of
summary disposition to Smith, and affirmed the trial court’s grant of summary disposition to the
other defendants.
After this Court remanded the electrocution cases to the trial court for further
proceedings, Michael’s estate and Kott-Millard retained Goodman Kalahar and discharged the
Fieger parties, but not the Robb parties. Knudsen Estate, unpub op at 4. The trial court
dismissed the remaining claims in the electrocution cases, for reasons not directly relevant to this
appeal. Id.
In 2016, Michael’s estate and Kott-Millard, through Goodman Kalahar, filed legal-
malpractice actions against the Fieger parties in Grand Traverse Circuit Court. Id. The gist of
the malpractice claims was that the Fieger parties had “breached the standard of care by failing to
plead tort claims against the municipal entities under federal admiralty law.” Id. The trial court
granted summary disposition to the Fieger parties based on the so-called “attorney-judgment
rule.” Id. at 5-6. On appeal, this Court reversed the grant of summary disposition to the Fieger
parties and remanded the malpractice cases to the trial court for further proceedings. Id. at 23.
In response to the malpractice actions, the Fieger parties filed the present action against
the various defendants in Wayne Circuit Court. The Fieger parties alleged that, beginning
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around the middle of 2014, Goodman Kalahar, along with the attorneys who owned the firm
(collectively, “the Goodman Kalahar parties”), had conspired with the Robb parties to develop a
malpractice theory that the Fieger parties should have pursued federal claims sounding in
admiralty law. That is, according to the Fieger parties, the Goodman Kalahar parties and the
Robb parties declined to take any action to assert federal claims sounding in admiralty law in the
electrocution cases and instead waited to pursue legal-malpractice claims against the Fieger
parties. The Fieger parties alleged that this conspiracy was tacitly approved by Kott-Millard,
Michael’s estate, and Michael’s parents, Martin and Tokar (collectively, “the Client parties”).
The Fieger parties alleged that, in his deposition in the malpractice cases, Robb acknowledged
that he had secretly given file materials in the electrocution cases to the Goodman Kalahar
parties in June 2014, shortly after this Court issued its opinion in the electrocution cases.
In their complaint, the Fieger parties alleged five counts. In Count 1, the Fieger parties
asserted a breach-of-contract claim against the Robb parties. The Fieger parties alleged that they
had entered into a contractual relationship with the Robb parties to represent the interests of
Michael’s estate and Kott-Millard. The Fieger parties alleged that the Robb parties breached this
agreement by failing to cooperate and work with the Fieger parties, failing to exercise due
diligence and good faith, and working with other persons to undermine and harm the contractual
relationship. In Count 2, the Fieger parties asserted a breach-of-contract claim against the Client
parties. The Fieger parties alleged that the Client parties failed to cooperate and work with the
Fieger parties in their representation of the Client parties, and that the Client parties purportedly
worked with other persons to undermine and harm the contractual relationship with the Fieger
parties. In Count 3, the Fieger parties alleged a claim against the Robb parties and the Goodman
Kalahar parties for tortious interference with a contractual relationship. The Fieger parties
alleged that the Robb parties and the Goodman Kalahar parties improperly instigated a breach of
the contract between the Fieger parties and the Client parties. In Count 4, the Fieger parties
alleged a civil-conspiracy claim against all defendants in this case. In Count 5, the Fieger parties
asserted a breach-of-fiduciary duty claim against the Robb parties. The Fieger parties alleged
that they had reposed faith, confidence, and trust in the Robb parties and that the Robb parties
breached their fiduciary duty to the Fieger parties.
The Wayne Circuit Court transferred the Fieger parties’ lawsuit to the Grand Traverse
Circuit Court. After the transfer, the trial court issued an amended scheduling order. The order
stated that a final pretrial-scheduling conference would be held in May 2018 in the trial court’s
chambers in Traverse City, with the exact date of the conference to be provided by the trial
court’s administrative division in a separate notice. The order required all parties and their
attorneys to attend this conference. The order further required that, before the settlement
conference, the parties had to file trial briefs, trial exhibits, proposed jury instructions, and a
proposed verdict form. The order stated that failure to comply with every one of its requirements
“may result in a default or a dismissal as may be appropriate against the offending party or
attorney and an award of sanctions to each non-offending party.” The trial court subsequently
issued an amended notice of settlement conference indicating that the settlement conference
would be held on May 15, 2018, at 9:00 a.m., in the courthouse in Traverse City.
In January 2018, the Robb parties filed a motion for summary disposition under MCR
2.116(C)(6), (7), (8), and (10), arguing that the doctrine of res judicata barred the Fieger parties’
claims and that, even if the doctrine of res judicata did not apply, the Fieger parties had failed to
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state or support their claims against the Robb parties. On March 2, 2018, the trial court granted
summary disposition to the Robb parties on both grounds. The trial court also granted summary
disposition to Michael’s estate.
On May 14, 2018, late in the afternoon on the day before the final pretrial-scheduling
conference, the parties filed a stipulation, along with a proposed order, that would have
dismissed all claims against the remaining defendants. The proposed order stated that the
reasons for dismissal were those stated by the trial court for dismissing the claims against the
Robb parties and the estate. The stipulation and proposed order purported to preserve the Fieger
parties’ appellate rights to challenge the trial court’s decision and reasons for dismissal.
On May 17, 2018, the trial court entered a final order of dismissal. The trial court noted
that the case was scheduled for a final scheduling conference on May 15, 2018, at the Traverse
City courthouse. The trial court noted that “[j]ust before 5:00 on Monday, May 14, the parties
contacted the Court office and advised they had entered into a Stipulation of Dismissal.” The
trial court also noted that none of the parties or attorneys appeared at the Traverse City
courthouse on May 15 for the settlement conference. In addition, the parties did not file trial
briefs, proposed jury instructions, or exhibits as required by the scheduling order.
The trial court did not execute the proposed order of dismissal submitted by the parties,
but instead entered an order dismissing the parties’ remaining claims and any counterclaims,
cross-claims, and third-party claims. The trial court did so as a sanction, based on its conclusion
that the parties had violated provisions of its scheduling order. The order of dismissal stated:
Had the remaining defendants filed a Motion for Summary Disposition,
accompanied by a brief, and [the Fieger parties] filed a response, this court may
have ordered summary disposition for the defendants in this case. But that did not
happen.
The Scheduling Order required the parties to arrange and complete
mediation by April 30, 2018. Mediation was not accomplished.
The parties and trial attorneys in this case failed to appear at the
Settlement Conference. Indeed no one appeared at the Settlement Conference.
The documents required by the scheduling order to be filed by [the] Settlement
Conference, including the trial brief, proposed jury instructions and trial exhibits,
were not filed. For violation of the Civil Scheduling Conference order entered in
this case on August 30, 2017, the remaining claims by [the Fieger parties] against
defendants and any and all counter-claims, cross-claims, and third-party claims by
either [the Fieger parties] or defendants are hereby dismissed with prejudice and
without costs.
This appeal and cross-appeal followed.
II. ANALYSIS
A. SUMMARY DISPOSITION
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The Fieger parties first argue that the trial court erroneously granted summary disposition
to the Robb parties on the ground that the Fieger parties had failed to state, or provide
evidentiary support for, their claims for breach of contract, tortious interference with a
contractual relationship, and civil conspiracy. We review de novo a trial court’s decision on a
motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934
NW2d 665 (2019).
Initially, we note that the Fieger parties make no appellate argument challenging the grant
of summary disposition to the Robb parties on the breach-of-fiduciary duty claim. The Fieger
parties have thus abandoned any challenge to the trial court’s grant of summary disposition to the
Robb parties on that claim. See Barrow v Detroit Election Comm, 305 Mich App 649, 668 n 4;
854 NW2d 489 (2014).
Regarding the breach-of-contract claim against the Robb parties, the Fieger parties
asserted in their complaint that the contracts allegedly breached were the August 2011 retainer
agreements. In those agreements, the Fieger parties and the Robb parties agreed to provide legal
services to the Client parties with respect to the electrocution cases. At the summary-disposition
hearing, the trial court noted that it had found nothing in those agreements that imposed any
duties on the Robb parties in favor of the Fieger parties. On appeal, the Fieger parties fail to
identify any provision of the agreements that they believe imposed a duty on the Robb parties in
favor of the Fieger parties and that the Robb parties breached. The Fieger parties cannot rely on
this Court to make their arguments for them because an appellant “may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give issues cursory treatment with little or no citation of supporting authority.” See Peterson
Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (citations omitted).
Rather than identify a specific contractual provision that they believe was breached, the
Fieger parties assert that the Robb parties breached the implied contractual obligation to act in
good faith. Michigan does not, however, “recognize a cause of action for breach of the implied
covenant of good faith and fair dealing.” Bank of America, NA v Fidelity Nat’l Title Ins Co, 316
Mich App 480, 501; 892 NW2d 467 (2016) (cleaned up). Furthermore, the implied covenant of
good faith cannot be invoked to override or replace any express contractual language. Id.
Because the Fieger parties fail to identify any express contractual provision that applies, their
invocation of the implied covenant of good faith does not establish that the trial court
erroneously granted summary disposition to the Robb parties on the breach of contract claim.
Regarding the claim for tortious interference with a contractual relationship, the Fieger
parties again rely on the August 2011 retainer agreements and argue that the Robb parties
instigated the Client parties’ alleged breaches of those retainer agreements. “The elements of
tortious interference with a contract are (1) the existence of a contract, (2) a breach of the
contract, and (3) an unjustified instigation of the breach by the defendant.” Health Call of
Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 89-90; 706 NW2d 843
(2005).
The Fieger parties have failed to make factual allegations or present evidence that the
Client parties breached the retainer agreements. The fact that the Client parties discharged the
Fieger parties does not establish a breach of contract. A client “has an absolute right to discharge
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an attorney and is therefore not liable under the contract for exercising that right.” Reynolds v
Polen, 222 Mich App 20, 25; 564 NW2d 467 (1997). The Fieger parties suggest that the Client
parties failed to cooperate in the litigation of the electrocution cases, but the Fieger parties have
provided no factual allegations or evidence to support that assertion. The fact that the Client
parties sought a second opinion from other attorneys does not establish a breach of contract by
the Client parties. The Fieger parties assert that the Client parties breached the implied duty to
act in good faith, but again, there is no cause of action for breach of the implied covenant of
good faith, and the duty to act in good faith cannot be invoked as a replacement for an express
contractual provision to establish a breach of a contract. Bank of America, 316 Mich App at 501.
Because the Client parties did not breach the retainer agreements, the Fieger parties have failed
to establish a necessary element of their claim against the Robb parties for tortious interference,
and the trial court therefore properly granted summary disposition to the Robb parties with
respect to the tortious-interference claim.
As for the civil conspiracy claim, the Fieger parties’ position on appeal fails for multiple
reasons. They cite no authority regarding what is required to establish a civil-conspiracy claim
and fail to present a coherent argument regarding this claim. They have therefore abandoned any
argument regarding this claim. See Peterson Novelties, 259 Mich App at 14. Moreover, they
have failed to allege facts or present evidence establishing an actionable underlying tort.
Because no basis exists to find an unlawful purpose or unlawful means in the Robb parties’
actions, the trial court did not err in its grant of summary disposition regarding this claim.
Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 257 Mich App 365, 384; 670
NW2d 569 (2003), aff’d 472 Mich 91 (2005) (cleaned up).
For these reasons, the trial court properly granted summary disposition to the Robb
parties. It is therefore unnecessary for this Court to address whether summary disposition in
favor of the Robb parties was warranted on the alternative basis of the doctrine of res judicata.
B. DISMISSAL AS A SANCTION
The Fieger parties and cross-appellants also challenge the trial court’s order of dismissal
as a sanction for their failure to comply with its scheduling order. “Trial courts possess the
inherent authority to sanction litigants and their counsel, including the right to dismiss an
action.” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). We review a
trial court’s decision to dismiss a case as a sanction for an abuse of discretion, noting that
dismissal “is a drastic step that should be taken cautiously.” Vicencio v Jaime Ramirez, MD, PC,
211 Mich App 501, 506; 536 NW2d 280 (1995).
This Court has provided a nonexhaustive list of factors that a court should consider
before ordering dismissal as a sanction:
(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. [Id. at
507.]
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Before imposing the sanction of dismissal, “the trial court is required to carefully evaluate all
available options on the record and conclude that the sanction of dismissal is just and proper.”
Id. at 506. If the trial court has failed to evaluate other available options on the record, then the
dismissal of the case constitutes an abuse of discretion. Id. at 506-507.
Here, there is no indication in the record that the trial court considered a sanction short of
dismissal with prejudice. We therefore conclude that the trial court abused its discretion in
dismissing the case in the manner that it did, i.e., as a sanction for violating its scheduling order.
See id. On remand, the trial court shall enter the parties’ stipulated dismissal.
Affirmed in part, reversed in part, and remanded for entry of dismissal. Because no party
has prevailed in full, we decline to award taxable costs under MCR 7.219(F). We do not retain
jurisdiction.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Brock A. Swartzle
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