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
In re Guardianship of MARY ALICE MCGILLIS.
DARRIN E. MCGILLIS, UNPUBLISHED
March 10, 2020
Petitioner-Appellant,
v No. 349412
Delta Probate Court
MARY ALICE MCGILLIS, LC No. 19-022370-GA
Respondent-Appellee.
Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.
PER CURIAM.
Petitioner appeals by right the trial court’s dismissal with prejudice of his petition to
appoint a guardian for respondent, his grandmother. We affirm.
I. BACKGROUND
On April 5, 2019, petitioner, who lives in Florida, filed a petition with the trial court,
requesting that the court appoint respondent’s granddaughter as respondent’s guardian. Following
the petition, the trial court appointed a guardian ad litem (GAL) for respondent. The GAL visited
respondent on two occasions and, according to the GAL, respondent was in favor of her former
daughter-in-law, acting as her guardian. Indeed, the former daughter-in-law seems to have long
assisted respondent in her affairs, has a durable power of attorney regarding respondent, and has
been named respondent’s patient advocate.
One day before the hearing on petitioner’s petition, petitioner filed a motion to appear via
telephone. Although a review of the record indicates that petitioner was apparently unable to
appear in person for medical reasons, in petitioner’s motion, he simply stated that he was unable
to appear for reasons beyond his control. At the hearing, the trial court dismissed petitioner’s
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petition with prejudice on the basis of petitioner’s failure to appear at the hearing.1 The trial court
explained that the court rule petitioner cited in his motion to appear by phone, MCR 2.402(B), was
inapplicable, because this was a hearing on petitioner’s petition, not a motion hearing, pretrial
conference, scheduling conference, or status conference.2 Further, petitioner failed to comply with
the applicable court rule, MCR 2.119(C)(1), because petitioner filed the motion to appear by
telephone only one day before the hearing, and petitioner did not “assert any good cause.”3 For
these reasons, the trial court declined to reach the merits of the case.
Petitioner subsequently filed several motions, which the trial court denied. This appeal
followed.
II. ANALYSIS
Petitioner first argues that the trial court erred by dismissing the petition with prejudice.
“A trial court’s decision to dismiss an action is reviewed for an abuse of discretion.” Donkers v
Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007). “An abuse of discretion occurs when
the trial court’s decision is outside the range of reasonable and principled outcomes.” Pirgu v
United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016).
Petitioner appears to errantly argue in his brief that his petition was dismissed on the basis
of the GAL’s report and a social worker’s testimony. While the GAL’s report certainly refutes the
material aspects of petitioner’s claims, the trial court actually dismissed the petition for petitioner’s
failure to appear at the hearing. Although petitioner’s argument is difficult to discern from his
1
We read the “with prejudice” language in the trial court’s order as preventing only the refiling of
the instant petition or a petition premised upon the same underlying factual circumstances. Indeed,
this reading is consistent with the trial court’s reasoning that the dismissal with prejudice was a
sanction for petitioner’s failure to, in his words, “prosecute” his petition. In this regard, we do not
read the trial court’s order as preventing the filing of a new petition upon a material change in
circumstances.
2
MCR 2.402(B) provides, in relevant part, that “[a] court may, on its own initiative or on the
written request of a party, direct that communication equipment be used for a motion hearing,
pretrial conference, scheduling conference, or status conference.”
3
MCR 2.119(C)(1) provides:
Unless a different period is set by these rules or by the court for good cause,
a written motion (other than one that may be heard ex parte), notice of the hearing
on the motion, and any supporting brief or affidavits must be served as follows:
(a) at least 9 days before the time set for the hearing, if served by first-class
mail, or
(b) at least 7 days before the time set for the hearing, if served by delivery
under MCR 2.107(C)(1) or (2) or MCR 1.109(G)(6)(a).
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brief, petitioner appears to acknowledge this ground for dismissal, stating that “[t]he logical result
would have been to set the hearing for another date given the Motion to Appear via Telephone
could not be granted by the Court.”4 Petitioner argues that he was acting as a “prosecutor” on the
petition and that he “should have been granted a new hearing date to continue the prosecution of
the case he brought to the lower court.”
When imposing the severe sanction of dismissal, the trial court must carefully “consider
the circumstances of each case to determine if such a drastic sanction is appropriate.” Duray
Development, LLC v Perrin, 288 Mich App 143, 164-165; 792 NW2d 749 (2010) (internal citation
and quotation marks omitted). In doing so, the trial court should address on the record the
applicable factors set forth in Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990).
“The record should reflect that the trial court gave careful consideration to the factors involved
and considered all of its options in determining what sanction was just and proper in the context
of the case before it.” Duray, 288 Mich App at 165 (internal citation, quotation marks, and
brackets omitted).
In deciding to dismiss the petition, the trial court addressed several of the applicable Dean
factors. Particularly severe in this case were the prejudice to the other interested parties, the
inadequacy of the notice of petitioner’s inability to attend, and petitioner’s complete failure to
support his motion to appear by telephone. The trial court noted that the hearing on the petition
was set to be heard at 9 a.m. and petitioner did not file his motion to appear by telephone until 3:45
p.m. the day prior. Petitioner did not notify the GAL of his inability to attend, nor is there any
indication in the record that petitioner notified any other interested party. Petitioner did not provide
adequate supporting authority for his motion and his motion was grossly untimely under MCR
2.119(C)(1). Petitioner alleges before this Court that he was suffering from a medical ailment at
the time, which prevented him from attending the hearing in person, but petitioner did not mention
any medical issue in his motion. Moreover, the trial court noted that the hearing required the
elderly subject of the petition to be transported approximately 70 miles from her nursing-home
residence to the courthouse. Indeed, it appears that several other interested persons traveled long
distances to attend the hearing, without any apparent indication from petitioner that he would not
be attending.
At first glance, we would agree with the trial court that these factors support dismissing the
petition. Nonetheless, we need not substantively address this issue because petitioner has provided
no authority which would suggest that the trial court’s sanction was erroneous. “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.” Riemer v Johnson,
311 Mich App 632, 653; 876 NW2d 279 (2015) (internal citation and quotation marks omitted).
An appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651
4
Petitioner appears to concede that the trial court properly denied his motion to appear by
telephone. If he has not so conceded the issue, he has not adequately raised it in the statement of
questions presented to invoke our review. MCR 7.212(C)(5).
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NW2d 756 (2002). Accordingly, because petitioner has failed to elaborate his assertion of error
with any discernable, substantive legal argument, we conclude that he has abandoned the issue on
appeal.
Petitioner next argues that the trial court violated “the Due Process and Equal Protection
Clause of the constitution.” Petitioner argues, “If the function of a court is to find the truth of a
matter so that justice might be done, then a rule which absolutely excludes the best possible
evidence of a matter in issue rather than allow it to be weighed by the trier of fact must necessarily
lead to injustice.” Petitioner notes that due process requires an “opportunity to be heard,” but does
not identify which “rule” denied him this opportunity or otherwise explain how the trial court
denied him his constitutional rights. If petitioner is arguing that the trial court’s denial of his
motion to appear by telephone and/or sanction of dismissal violated his constitutional rights, he
has provided no discernible explanation of how this violation occurred. Accordingly, we conclude
that petitioner has abandoned this argument. Id.
Finally, petitioner argues that the durable-power-of-attorney laws of this state violate the
equal-protection clause of the Fourteenth Amendment and our Constitution. Petitioner asks this
Court to reverse the trial court and “allow a meaningful hearing to bring evidence through
witnesses and documents through evidentiary procedures.” In support of this request, petitioner
argues only, “When a court voluntarily blindfolds itself to what every citizen can see, the public
must justifiably question the administration of law to just that extent.” Exactly what the trial court
blindfolded itself to is unclear; equally unclear is how the equal protection clause is implicated.
Again, because petitioner failed to adequately support his assertion of error, he has abandoned this
issue. Id.
Affirmed.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
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