Hurt v. Cambridge

21 Mich. App. 652 (1970) 176 N.W.2d 450

HURT
v.
CAMBRIDGE

Docket No. 6,985.

Michigan Court of Appeals.

Decided February 6, 1970. Leave to appeal denied September 25, 1970.

Leitson, Dean, Dean, Segar & Hart, P.C., for plaintiff.

Moll, Desenberg, Purdy, Glover & Bayer, for defendant.

Before: J.H. GILLIS, P.J., and McGREGOR and QUINN, JJ.

Leave to appeal denied September 25, 1970. 384 Mich. 760.

J.H. GILLIS, P.J.

Plaintiff, Muriel Hurt, appeals from a final order of dismissal entered by the circuit court for the county of Saginaw in favor of defendant, Vernal Cambridge, dismissing with prejudice plaintiff's suit for lack of prosecution.

On May 5, 1965, plaintiff commenced this medical malpractice action against defendant physician. Defendant's answer, together with a motion for summary judgment and to strike portions of the complaint, was filed on May 24, 1965. Two days later, plaintiff demanded trial by jury. Thereafter, no action was taken by either party and on July 14, 1966, the case appeared on the trial court's no-progress calendar for dismissal on September 12, 1966.

On August 29, 1966, plaintiff filed a motion seeking removal of the case from the no-progress calendar.^[1] Accompanying this motion was an affidavit wherein plaintiff's attorney asserted that the case was ready for immediate trial. On the same date, plaintiff praeciped the case for trial.^[2] Subsequently, on August 31, 1966, the trial judge, without affording defendant an opportunity to be heard,^[3] signed an order submitted by plaintiff removing the case from the no-progress calendar.

On September 12, 1966, defendant filed a motion to set aside the court's order removing the case from the no-progress calendar and to dismiss the case for lack of prosecution. A notice of hearing accompanied the motion, but it was not praeciped at this time. It was defendant's contention that the affidavit accompanying plaintiff's motion to remove was insufficient under the local court rule,^[4] since no reasons for lack of progress were set forth in the affidavit. Plaintiff's attorney then filed a supplemental affidavit in support of the motion to remove, asserting that the lack of progress was the result of his inadvertent failure to praecipe the case for trial.

On August 15, 1968, 23 months after it was filed, defendant praeciped the motion to vacate and to dismiss for hearing and on August 19, 1968, oral arguments were presented on the motion. In a written opinion dated January 23, 1969, the trial court granted defendant's motion to set aside the prior order of removal and dismissed the action for lack of progress. This appeal followed.

On appeal, both parties suggest that the question which we must decide is whether the trial court abused its discretion in dismissing plaintiff's action for lack of prosecution. Both parties address their arguments to the situation as it existed upon plaintiff's motion to remove the case from the no-progress docket. Plaintiff contends that the failure to praecipe the case for trial is not such a want of prosecution as would justify dismissal. Defendant contends that the explanation offered by way of plaintiff's supplemental affidavit for failure to praecipe is not such an excuse as would justify removal of the case from the no-progress docket.

We agree with the suggestion of the parties that the controlling question on this appeal is whether the trial court abused its discretion in dismissing plaintiff's action. As this case reaches us, its posture is comparable to that which exists upon a motion to reinstate a cause after dismissal for lack of progress pursuant to GCR 1963, 501.3. In the latter situation, the question of reinstatement is a matter within the discretion of the trial court. Robinson v. Washtenaw Circuit Judge (1928), 242 Mich. 548; Hoad v. Macomb Circuit Judge (1941), 298 Mich. 462; Reynolds v. Dobbertin (1962), 366 Mich. 162; Corley v. Krawczak (1969), 16 Mich. App. 176. The trial judge must determine whether good cause has been shown why an order reinstating the case should issue. We think issuance of an order, such as in this case,^[5] denying removal of a case from the no-progress docket is likewise within the trial court's discretion. It follows that we cannot reverse the order here challenged unless we are satisfied that the trial court abused its discretion in denying removal and dismissing plaintiff's action. Moreover, as defendant suggests, our review is restricted to determining whether there is any justification in the record for the ruling of the trial court.

"``To warrant such interference, the abuse ought to be so plain that upon consideration of the facts upon which the trial judge acted, an unprejudiced person can say that there was no justification or excuse for the ruling made.'" Hoad v. Macomb Circuit Judge, supra, at 468, quoting Cooper v. Carr (1910), 161 Mich. 405, 412.

Defendant contends that plaintiff's failure to praecipe the case for trial justifies an order denying removal from the no-progress docket. On the record before us, we cannot agree.

At common law, the failure to prosecute a cause with due diligence exposed neglectful parties to judgments of nonsuit and non prosequitur. 3 Blackstone, Commentaries (1768), 295, 296. In Abe Stein Co. v. Wood (1908), 151 Mich. 657, the Court construed a statutory provision^[6] codifying the common-law practice. Plaintiff's action, as in this case, had been dismissed for lack of prosecution. As here, the ground relied upon as justifying dismissal was plaintiff's failure to notice the case for trial. The Court, however, noted that under rules of practice then in effect a defendant had equal rights to praecipe for trial. Since defendant had likewise failed to notice the case for trial, he was "``deemed tacitly to assent to the delay.'" 151 Mich at 660, quoting 1 Green's New Practice (2d ed), p 499. Accord, Joy v. Two-Bit Corporation (1938), 287 Mich. 244.^[7] The Court concluded:

"We are therefore of the opinion that since the adoption of Rule 54 [permitting defendant to praecipe for trial], the reason for dismissing a cause for want of notice * * * no longer exists, and that some neglect to bring said cause to trial, other than a mere failure to notice the cause, should be shown before a nonsuit should be ordered." 151 Mich at 661. (Emphasis supplied.)

In the present case, it is clear that defendant possessed equal rights to notice the case for trial. The case was at issue,^[8] and under the local rules of practice then in effect, "any attorney desiring to obtain a trial or hearing thereof shall fill a praecipe for hearing with the clerk * * *." Saginaw County Circuit Court Rules, Part I, Rule No 3. (Emphasis supplied.) That no proceedings were taken in this case within one year of plaintiff's demand for jury trial cannot be attributed to plaintiff alone. Defendant himself failed to praecipe the case for trial. Abe Stein Co. v. Wood, supra; Joy v. Two-Bit Corporation, supra.

In Sayre v. Detroit, G.H. & M.R. Co. (1917), 199 Mich. 414, the Court, by way of dictum, answered the very question now before us. In Sayre, plaintiff's action had been dismissed for lack of progress. A statute then in effect provided for dismissal of actions where no action had been taken for more than one year, unless cause was shown to the contrary.^[9] As in the present case, the action appeared on the no-progress calendar as a result of plaintiff's failure to notice the case for trial. In reversing the dismissal, the Court noted at 421, 422:

"But when the motion of defendant was made in the case at bar, it stood in form upon the records of the court at issue, ready for trial. A notice from either party would have placed it upon the trial docket. * * * Assuming that [the trial court] had authority and that the question of judicial discretion and its abuse is before us, no default of plaintiff except failure to bring the cause on for trial is involved, for which defendant at all times had a remedy by itself bringing the cause on for trial." (Emphasis supplied.)

Both Abe Stein Co. v. Wood, supra, and the Sayre case appear to require the conclusion that it is an abuse of discretion for a trial court to deny removal of a case from the no-progress docket, or to deny reinstatement after dismissal, solely on the ground that plaintiff failed to praecipe for trial. We need not, however, decide whether defendant's failure in this case to notice for trial, standing alone, required removal of the case from the no-progress docket. We hold only that defendant's acquiescence in the year's delay was one among other relevant circumstances to be considered upon plaintiff's motion to remove.

In its opinion granting defendant's motion to dismiss for lack of prosecution, the trial court, although the question was before it, did not expressly decide whether plaintiff had shown sufficient justification for removal of the case from the no-progress docket. We find it necessary, however, to decide the question of justification since the issue is properly before us and, if resolved in defendant's favor, it affords grounds for affirmance.

Both GCR 1963, 501.3, and the circuit court rules for the county of Saginaw justified placement of plaintiff's action on the trial court's no-progress docket. It is undisputed that no proceedings were taken in this case within one year of the last calendar entry — plaintiff's demand for a jury trial. However, upon plaintiff's timely motion for removal from the no-progress docket, the case was not subject to dismissal,

"If at the call it is shown that the failure to take steps or proceedings is not due to the plaintiff's fault or lack of reasonable diligence on his part * * *." GCR 1963, 501.3.

Likewise, under the rule of practice for the county of Saginaw, the cause was not subject to dismissal if plaintiff explained the lack of progress to the satisfaction of the trial court. Under both rules, what is required is some showing of good cause why the action should not be dismissed. See generally 3 Callaghan's Michigan Pleading & Practice, § 32.55.

In his supplemental affidavit accompanying plaintiff's motion to remove, plaintiff's counsel explained that he was unaware of the local court rule requiring a party to file a praecipe in order to secure trial.^[10] He asserted that all of his court experience had been in Genesee county where, under local rules of practice, cases were automatically advanced on the trial docket without the filing of praecipes. On appeal, the facts contained in counsel's affidavit are not disputed. However, defendant contends that the explanation offered is legally insufficient to justify removal of the case from the no-progress docket.

In Michigan, the neglect of an attorney is generally regarded as attributable to his client. See White v. Sadler (1957), 350 Mich. 511, 522. Nevertheless, at times courts have held that counsel's inaction, explained on the ground of inadvertence, constituted sufficient excuse for failure to prosecute a claim with diligence. See Anno: "Attorney's Inaction as Excuse for Failure to Timely Prosecute Action," 15 ALR3d 674.

In Marquette Appliances, Inc. v. Wexler (ED Penn, 1960), 27 FRD 484, plaintiff's action appeared on the court's no-progress docket as a result of counsel's failure to notice the case for trial. The failure was explained on grounds of inadvertence. Plaintiff's original attorney had withdrawn and succeeding counsel was unaware that the case had never been noticed for trial. The court held the explanation sufficient and removed the case from the no-progress docket. We think the situation in the present case is comparable.

Nothing in this record suggests that counsel's failure to praecipe for trial was a deliberate omission.^[11] This is not a case where the lack of progress is due to the obstinate refusal of a party to abide by the rules of court. See generally, 3 Callaghan's Michigan Pleading & Practice, § 32.53. Nor is it a case where counsel's omission is wholly unexplained. Compare Banta v. Serban (1963), 370 Mich. 367.

In Luplow v. Aubry Cleaners & Dyers, Inc. (1962), 366 Mich. 353, a default judgment was entered against defendant for nonappearance at pretrial. On appeal, the default was vacated. The circumstances which persuaded the Court to remand the case for trial on the merits were noted at 358:

"The cause was at issue under the pleadings, a jury had been demanded, and the explanation of defendant's counsel as to his failure to appear at the pretrial, which apparently was not disputed, indicated that his omission to attend the pretrial was not deliberate or premeditated but resulted from the fact that he was engaged in the trial of another case and overlooked the pretrial. For such omission defendant should not be penalized * * *." (Emphasis supplied.)

In this case the same circumstances were present when plaintiff's attorney sought to remove the case from the no-progress docket. We conclude that sufficient justification for removal had been shown. Plaintiff should not have suffered the "drastic sanction," see Banta v. Serban, supra, at 369, of dismissal with prejudice because of her counsel's inadvertent failure to praecipe for trial. In this regard, we are persuaded that the policy of the law favoring disposition of litigation on the merits required removal of the case from the no-progress calendar.^[12]

An additional consideration leads us to conclude that plaintiff's action should not have been dismissed for lack of progress. The record in this case indicates that at the time defendant's motion to dismiss was heard plaintiff was prosecuting her claim with diligence.^[13]

On September 12, 1966, defendant filed his motion to vacate the order of removal and to dismiss for lack of progress. No praecipe for hearing on the motion was filed, however, until August 15, 1968.^[14] In the interim, defendant submitted interrogatories to plaintiff which were promptly answered. On June 16, 1967, plaintiff's attorney inquired of the court when the case would be reached for trial. He was informed by the clerk that it would take another year to reach trial. On July 5, 1968, plaintiff completed and filed with the court a pretrial information form. Thereafter, plaintiff attended a pretrial conference. Immediately after the hearing on defendant's motion to dismiss for lack of progress, plaintiff filed an amended complaint which was answered by defendant. The record also reveals that the depositions of several medical witnesses were taken by plaintiff. All of these actions indicate plaintiff's interest in and desire to prosecute her case.

In Robinson v. Washtenaw Circuit Judge, supra, at 550, the Court noted that the purpose of no-progress dismissals is "``to clean up the deadwood which accumulates in circuit courts.'" We fail to see how the dismissal in this case served to eliminate deadwood from the trial court's docket. Unlike the situation in cases relied on by defendant,^[15] plaintiff moved promptly to have her case removed from the no-progress docket, filed the requisite praecipe, and thereafter prosecuted the case with diligence.

Defendant contends that we should affirm on the ground that he has been prejudiced by the long delay in this case. The trial judge found as a fact that several physicians who had treated plaintiff before and after the alleged malpractice had died. Apparently, the trial judge concluded that the unavailability of such testimony justified dismissal. We cannot agree.

Defendant's motion to set aside the order of removal and to dismiss for lack of prosecution was filed on September 12, 1966. The motion raised a question of law for the court and it was then defendant's burden to secure a prompt hearing on the motion. No hearing was held, however, until August 19, 1968.^[16] In the interim, the deaths now relied on by defendant as justifying dismissal occurred.

We think it apparent that defendant himself was responsible for the allegedly prejudicial delay. Since defendant failed to obtain a prompt hearing on his motion to vacate the removal and to dismiss for no progress, we hold that he thereby acquiesced in the delay. Cf. Abe Stein Co. v. Wood, supra, at 660; Joy v. Two-Bit Corporation, supra, at 251. Plaintiff should not have been charged with delay occurring after defendant's motion had been filed. See 3 Callaghan's Michigan Pleading & Practice, § 32.54. Nor was dismissal justified on the ground that the defense had been prejudiced.

In summary, we are satisfied "``upon consideration of the facts upon which the trial judge acted * * * that there was no justification or excuse for the ruling made.'" Hoad v. Macomb Circuit Judge, supra, at 468.

The order of the trial judge dismissing the action is vacated. The case stands removed from the no-progress calendar, and we remand for further proceedings. Costs to plaintiff.

All concurred.

NOTES

[1] Plaintiff's motion was filed pursuant to Saginaw County Circuit Court Rules, Part I, Rule No 16, then in effect. (Now Saginaw County Circuit Court Rules, Part I, Rule No. 6.) The rule then in effect was as follows:

"Four weeks prior to the opening of each term of court, a list of cases to be dismissed under the statute for want of prosecution shall be provided by the clerk and shall be published in the Saginaw Press in its issue of that week and three following weeks. The cases listed in the no-progress calendar shall be dismissed by the presiding judge on the first day of the term of court unless the attorneys interested in said cases and desiring to have them removed from the ``no-progress' calendar shall take the following steps before the first day of the term.

"(a) Praecipe, file and serve a motion on opposing counsel or the opposite party if no counsel appears, praying, that the cause may be taken from the no-progress calendar, accompanying the same with an affidavit setting forth the reasons for lack of progress. File proof of service of the above motion with the clerk. Notice said hearing for the opening day of each term of court." (Emphasis supplied.)

And see GCR 1963, 501.3.

[2] Under the local circuit court rules then in effect, cases were not automatically placed on the trial docket. A party desiring to obtain a trial was required to file a praecipe for hearing with the assignment clerk.

"Whenever any cause either at law or in chancery shall be at issue as to all parties, any attorney desiring to obtain a trial or hearing thereof shall file a praecipe for hearing with the clerk * * *." Saginaw County Circuit Court Rules, Part I, Rule No 3.

[3] Plaintiff had noticed the motion to remove for hearing on September 12, 1966. It is apparent from the record that defendant had not seen the proposed order before its entry, nor had defendant waived notice of entry on plaintiff's motion. A copy of the letter enclosing the proposed order was, however, sent to defendant's counsel.

For purposes of this appeal, we assume that the initial order removing the case from the no-progress docket was invalid. The order was ex parte; defendant was not given the opportunity to be heard. Cf. Sayre v. Detroit, G.H. & M.R. Co. (1917), 199 Mich. 414. However, any error in this regard was subsequently cured. Defendant was given full opportunity to be heard upon his motion to vacate the prior order of removal. See text, infra.

[4] See fn 1, supra.

[5] The trial court's order vacated the prior order of removal and thus related back to the situation as it existed upon plaintiff's motion to remove. We treat the order setting aside the removal as equivalent to a denial of plaintiff's motion to remove.

[6] "When an issue of fact shall be joined in any cause, and the plaintiff shall neglect to bring such an issue to trial, according to the course and practice of the court, such court, on the application of the defendant, may give the like judgment for the defendant as is cases of nonsuit, or may, upon just terms, allow a further time for the trial of such issue." CL 1897, § 10252.

[7] "Lee [defendant] neither praeciped the principal case for trial nor sought an early hearing and, therefore, he acquiesced in the delay." 287 Mich at 251.

[8] Compare Stone v. Stone (1910), 162 Mich. 319, 322.

[9] "All causes in which no action has been taken or progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: ``Causes in which no progress has been made for more than one year;' and on the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary."

CL 1915, § 12574. Compare GCR 1963, 501.3.

[10] See fn 2, supra.

[11] In Meeker v. Rizley (CA 10, 1963), 324 F2d 269, plaintiff's action was dismissed for his failure to appear at a court-ordered pretrial conference. Compare GCR 1963, 504.2. The court of appeals reversed, noting at 271:

"There is no indication in the record that the plaintiff had been * * * inclined to deliberately disobey any order of the court for the purpose of delay. Plaintiff's only infraction was his failure to appear at a hearing on pretrial * * *. While we cannot excuse the failure to be present when these matters were noticed for hearing, still, if we treat the court's action as a dismissal, such action, under the circumstances of this case, was too drastic and a clear abuse of discretion." (Emphasis supplied.)

Accord, Castlegate, Inc., v. National Tea Company (D Colo, 1963), 34 FRD 221, 225. Compare Link v. Wabash R. Co. (1962), 370 U.S. 626 (82 S. Ct. 1386, 8 L. Ed. 2d 734).

[12] "The trend of our jurisprudence is toward meritorious determination of issues." Walters v. Arenac Circuit Judge (1966), 377 Mich. 37, 47. See also Abe Stein Co. v. Wood, supra, at 660; Rudd v. Rogerson (1963), 152 Colo 370 (381 P2d 995, 15 ALR3d 668); Meeker v. Rizley, supra, fn 11 at 271, 272.

[13] At the hearing on defendant's motion to dismiss, both the trial judge and the parties confined their review of the case to the situation as it existed upon plaintiff's motion to remove. On appeal, the parties likewise fail to consider the posture of the case as it existed when defendant's motion to dismiss was heard. In our view, the total history of the litigation, including prosecution after plaintiff's motion to remove, should be considered. See Burton v. Snow (1911), 165 Mich. 530, 534. This is true here, since the action had been removed from the no-progress calendar and defendant failed to secure a prompt hearing on his motion to vacate the order of removal and to dismiss for lack of progress. See text, infra. In the interim, plaintiff prosecuted the action with diligence. Unless the entire history of the litigation is considered, an important factor is overlooked. Namely, by her subsequent diligence, plaintiff demonstrated her interest in and desire to pursue this action.

[14] By court rule, the filing of a praecipe for all motions was required. Saginaw County Circuit Court Rules, Part I, Rule No 12.

[15] In Burton v. Snow, supra, at 534, there was "no evidence of preparation or of purpose to bring the cause to a hearing." In Robinson v. Washtenaw Circuit Judge, supra, at 551, "no attention whatever was given to the plaintiff's case from March 1, 1926, when it was dismissed, until November 27, 1926, the date of filing the motion to reinstate." See also Reynolds v. Dobbertin, supra (eight months elapsed before motion to reinstate filed.)

[16] Defendant first filed a praecipe for hearing on the motion on August 15, 1968, approximately 23 months after the motion was filed. Such action was necessary in order for defendant to secure a hearing. See fn 14, supra.