COA 375692 AFFILIATED DIAGNOSTIC OF OAKLAND LLC V AUTO CLUB INSURANCE ASSN Opinion - Per Curiam - Unpublished 7/20/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
AFFILIATED DIAGNOSTIC OF OAKLAND LLC,
Plaintiff-Appellant,
UNPUBLISHED
July 20, 2026
9:41 AM
v No. 375692
Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, LC No. 23-008895-NF
Defendant-Appellee.
Before: MALDONADO, P.J., and RIORDAN and YOUNG, JJ.
PER CURIAM.
Plaintiff, Affiliated Diagnostic of Oakland, appeals as of right the trial court’s September
19, 2024 order granting summary disposition to defendant, Auto Club Insurance Association. In
addition to characterizing the order as incoherent and unclear, plaintiff makes two arguments on
appeal. First, plaintiff argues that its failure to disclose a related case filed three days before
plaintiff filed its complaint was not grounds for dismissal. Second, plaintiff argues that its joinder
of three independent claims against defendant under MCR 2.203(B) was likewise not grounds for
dismissal. We agree, vacate the trial court’s order granting summary disposition in favor of
defendant, and remand.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, a medical services provider, performed a series of MRIs on three individuals—
Mustafa Allosh, Wadia Soulaka, and Abdulwahab Noman—for injuries they received in unrelated
car accidents. Allosh was a named insured to a policy issued by defendant, Noman was a listed
driver on a policy issued by defendant, and Soulaka was assigned to defendant through the
Michigan Automobile Insurance Placement Facility. Plaintiff charged defendant for the MRIs
performed on Allosh, Soulaka, and Noman, and defendant paid 195% of the amount payable under
Medicare, which was less than the total plaintiff requested.

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On July 13, 2023, plaintiff sued defendant, seeking to recover the difference plus attorney
fees. Pursuant to MCR 2.113(C)(2)(b),1 the complaint included the following declaration, signed
by plaintiff’s counsel:
Plaintiff is not aware of any civil action between these parties arising out of the
same transaction or occurrence as alleged in this Complaint pending in this Court,
nor is Plaintiff aware of any such action been [sic] previously filed and dismissed
or transferred after having been assigned to a judge.
However, a civil action arising out of the same transaction was in fact pending in the trial court.
Soulaka had sued defendant for personal injury protection (PIP) benefits three days before, on July
10, 2023. Also, the day after plaintiff filed suit, Allosh sued defendant seeking PIP benefits.
On June 13, 2024, Defendant moved for summary disposition under MCR 2.116(C)(7)
(immunity granted by law) and (10) (no genuine issue of material fact), arguing that, under MCL
500.3157(2), plaintiff is not eligible for more than what defendant had already paid.
The trial court granted defendant’s motion without holding a hearing. The trial court’s
order did not address defendant’s arguments for summary disposition. Rather, the trial court, citing
the suits filed by Soulaka and Allosh, dismissed plaintiff’s case sua sponte because the complaint
was filed in violation of MCR 1.109(D)(2)(a)(i) and (ii).2 The trial court further found that the
three claims for compensation made by plaintiff did not arise out of the same transaction or
occurrence and were thus impermissibly joined in violation of MCR 2.207. Plaintiff filed a motion
for reconsideration, which was denied, and this appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
“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 falls outside the range of principled outcomes.” Schafer v
Kent County, 515 Mich 1, 60 n 34; 29 NW3d 25 (2024). Questions concerning the interpretation
and application of statutes, court rules, and rules of evidence are reviewed de novo. Donkers, 277
Mich at 369.
B. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING PLAINTIFF’S CASE
AS SANCTION FOR COUNSEL’S ALLEGED VIOLATION OF MCR 1.109(D)(2)
The trial court did not expressly invoke a legal basis for the involuntary dismissal of
plaintiff’s case, citing only plaintiff’s violation of MCR 1.109(D)(2). However, “where a court’s
1 As defendant notes, MCR 2.113(C)(2)(b) was moved to MCR 1.109(D)(2) in 2018. Plaintiff’s
counsel’s declaration nonetheless cites MCR 2.113(C)(2)(b).
2 Again, plaintiff’s counsel erroneously refers to MCR 1.109(D)(2)(a) as MCR 2.113(C)(2)(b) in
the complaint.

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opinion does not invoke the proper court rule supporting its ruling, we may look to the substance
of the holding to see which rule governs.” Williamstown Twp v Hudson, 311 Mich App 276, 288;
874 NW2d 419 (2015). MCR 2.504(B)(1) permits a trial court to dismiss, sua sponte, a party’s
case as sanction for a violation of the court rules. Because the trial court dismissed plaintiff’s case
for failure to comply with a court rule, MCR 2.504(B)(1) governs.
“Dismissal is the harshest sanction that the court may impose on a plaintiff.” Donkers,
277 at 369. Thus, “[b]efore imposing such a sanction, the trial court is required to evaluate all
available options on the record and conclude that the sanction of dismissal is just and proper.”
Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). In Dean v Tucker, 182 Mich
App 27, 32-33; 451 NW2d 571 (1990), this Court formulated a nonexhaustive list of factors that
should be considered when determining whether dismissal is an appropriate sanction:
(1) whether the violation was willful or accidental;
(2) the party’s history of refusing to comply with discovery requests (or refusal to
disclose witnesses);
(3) the prejudice to the defendant;
(4) actual notice to the defendant of the witness and the length of time prior to trial
that the defendant received such actual notice;
(5) whether there exists a history of plaintiff’s engaging in deliberate delay;
(6) the degree of compliance by the plaintiff with other provisions of the court’s
order;
(7) an attempt by the plaintiff to timely cure the defect; and
(8) whether a lesser sanction would better serve the interests of justice.
The failure to evaluate other available options on the record before dismissing a case is an abuse
of discretion. Vicencio, at 506-507.
The trial court did not hold a hearing before dismissing plaintiff’s case, nor did the trial
court explain in its order why dismissal was warranted under the circumstances. By failing to
evaluate other available options on the record before dismissing plaintiff’s case, the trial court
abused its discretion. See id.
Further, plaintiff’s conduct is not the sort of conduct that typically warrants dismissal.
Conduct warranting dismissal includes “flagrant or wonton refusal to facilitate discovery that
typically involves repeated violations of a court order,” Swan v Morse, 332 Mich App 510, 518;
957 NW2d 396 (2020). For example, in Tolas Oil & Gas Exploration Co v Bach Servs & Mfg
LLC, 347 Mich App 280, 317-318; 14 NW3d 472 (2023), we affirmed the trial court’s dismissal
of plaintiff’s case where the trial court found that the plaintiffs had engaged in “a historical pattern
of gamesmanship and delay” that ultimately prejudiced the defendants. Similarly, in Maldonado
v Ford Motor Co, 476 Mich 372, 376, 397; 719 NW2d 809 (2006), the Michigan Supreme Court
likewise affirmed a trial court’s decision to dismiss plaintiff’s case where, despite an explicit
warning by the trial court that dismissal would result if plaintiff’s conduct continued, plaintiff

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“repeatedly and intentionally publicized inadmissible evidence so as to taint the potential jury pool,
deny defendants a fair trial, and frustrate the due administration of justice.”
Plaintiff’s conduct in this case was not comparable. Although plaintiff’s citation to a
version of the court rule that has not existed since 2018 may suggest a somewhat lax approach
toward compliance with MCR 1.109(D)(2),3 the record does not show that plaintiff’s violation of
that rule was either “flagrant” or “wonton.” Swan, 332 Mich at 518. And, although the trial court
identified two pending cases that should have been disclosed under MCR 1.109(D)(2), plaintiff’s
failure to disclose those cases when filing its complaint nonetheless constituted a single violation
of the court rule and was therefore not the sort of repeated misconduct that warranted dismissal in
Tolas Oil and Maldonado. Further still, of the two pending cases that the trial court states in its
order should have been disclosed by plaintiff, only one of those cases was pending when plaintiff
made the requisite affirmation under MCR 1.109(D)(2); the other case, as defendant
acknowledges, was filed one day after plaintiff filed its complaint.4
Finally, we note that “actual prejudice to the defendant” is one of the factors non-
exhaustively enumerated by this Court in Dean. Such prejudice contributed significantly to the
analysis of the plaintiffs’ impermissible conduct in both Tolas Oil and Maldonado.5 But defendant
does not appear to have been prejudiced by plaintiff’s failure to comply with MCR 1.109(D)(2).
As plaintiff points out, defendant must have been aware of the pending case, given that defendant
was a named party to the suit. However, defendant at no point complained of prejudice in the 14
months this case was pending in the trial court, nor does defendant make any such complaint of
prejudice now on appeal. Ultimately, even if the trial court were to have complied with its
obligations under Vicencio to evaluate other options before dismissing plaintiff’s case, we are not
persuaded that the misconduct identified by the trial court would have warranted such a drastic
measure.
C. PLAINTIFF’S CLAIMS AGAINST DEFENDANT WERE NOT IMPROPERLY JOINED
IN VIOLATION OF MCR 2.207
As for the plaintiff’s alleged violation of MCR 2.207, we note first that MCR 2.207 does
not obligate parties to do anything. Rather, MCR 2.207 obligates trial courts to join parties to a
given suit “[w]hen the presence of persons other than the original parties to the action is required
to grant complete relief . . . .” Therefore, plaintiff cannot have violated MCR 2.207 as alleged in
the trial court’s order.
3 That laxity is perhaps also demonstrated by the fact that MCR 1.109(D)(2)(a)(i)—and its
predecessor MCR 2.113(C)(2)(b)(a) for that matter—require signatories to affirm, as a matter of
fact, that “[t]here is no other pending or resolved civil action arising out of the transaction or
occurrence alleged in the complaint.” (Emphasis added). Plaintiff’s counsel’s affirmation, on the
other hand, merely attests to his lack of awareness of any such pending civil action.
4 We acknowledge that, although the trial court was incorrect about the specific cases pending, the
trial court was nonetheless correct that two cases appear to have been pending when plaintiff filed
its suit.
5 Maldonado does not cite Dean v Tucker, 182 Mich App 27; 451 NW2d 571 (1990). Prejudice
nonetheless features prominently in its analysis under Gentile v State Bar of Nevada, 501 US 1030;
111 S Ct 2720; 115 L Ed 2d 888 (1991).

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Second, and perhaps more importantly, we note that MCR 2.207 pertains to the misjoinder
and nonjoinder of parties, not claims. The trial court’s order nonetheless concludes that, because
plaintiff’s claims against defendant “share no common claims and do not arise out of the same
transaction or occurrence,” they were impermissibly joined in violation of MCR 2.207. The court
rule governing the compulsory joinder of claims is MCR 2.203(A), not MCR 2.207. But even if
MCR 2.207 were to apply, the very first sentence of that court rule expressly provides that
“[m]isjoinder of parties is not a ground for dismissal of an action.” Despite that express
prohibition, trial court’s order impermissibly dismisses plaintiff’s case for “violating MCR
1.109(D)(2)(a)(i + ii) and MCR 2.207.” (Emphasis added.)
Regardless, by invoking the “transaction or occurrence” criterion of MCR 2.203(A) in the
trial court’s order, the trial court seems to have recognized that MCR 2.203(A) is the court rule
that governs plaintiff’s joinder of claims. Under MCR 2.203(A), “the pleader must join every
claim that the pleader has against that opposing party at the time of serving the pleading, if it arises
out of the transaction or occurrence that is the subject matter of the action.” Plaintiff, by joining
its three claims against defendant for an alleged failure to fully reimburse plaintiff, appears to have
complied with MCR 2.203(A). But, even if plaintiff’s claims were somehow improperly joined,
the appropriate remedy is not to dismiss the misjoined claims, but rather to sever them and conduct
separate trials. See MCR 2.207 (“A claim against a party may be severed and proceeded with
separately.”)
D. ON REMAND
We decline to decide at this time whether summary disposition is appropriate as to
plaintiff’s claims against defendant for allegedly inadequate reimbursement. Therefore, we
remand for the trial court to consider those claims in the first instance, particularly in light of our
recent decision in Favot v Brown, ___ Mich App ___; ___ NW3d ___ (2024) (Docket Nos.
368733; 368734).
III. CONCLUSION
The trial court order dismissing plaintiff’s case is vacated and we remand this case to decide
defendant’s motion for summary disposition in the first instance. We do not retain jurisdiction.
/s/ Allie Greenleaf Maldonado
/s/ Michael J. Riordan
/s/ Adrienne N. Young

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