Cook v. Haynes

284 N.W.2d 479, 92 Mich. App. 288, 1979 Mich. App. LEXIS 2342

Opinions

M. F. Cavanagh, P. J.

The pertinent facts in this dispute are succinctly stated in our brother’s opinion. Further amplification at this point is unnecessary. We write to state the reasons for which we would reverse the court below.

It is clear from case law that the failure of an attorney to appear after due notice has been given is sufficient grounds for involuntary nonsuit, and that the purpose of permitting a court to dismiss a case on such grounds is to foster judicial control over the docket. Cavataio v City-Wide Cleaners and Dryers, Inc, 23 Mich App 419, 422; 178 NW2d 831 (1970), lv den 383 Mich 806 (1970). However, despite this retained judicial power of involuntary dismissal, exercise of this power should be undertaken cautiously. MacArthur Patton Christian Ass’n v Farm Bureau Insurance Group, 403 Mich 474, 477; 270 NW2d 101 (1978). Furthermore, the court rules recognize the need to make allowances in certain circumstances, including where human error is present, to relieve a party from the consequences of a final order or judgment. GCR 1963, 528.3(1) and (6). It is likewise evident that where a dismissal of a complaint or entry of a default judgment occurred because of the attorney’s nonappearance, the court had made a number of attempts to contact counsel, prior delays in the case had occurred and/or a certain amount of wilful neglect on the attorney’s or his client’s part appeared on the record. Eg., see Banta v Serban, 370 Mich 367; 121 NW2d 854 (1963).

In Heins v Sutphin, 76 Mich App 562; 257 NW2d 169 (1977), the Court considered four factors in deciding whether a court’s refusal to reinstate plaintiffs case after dismissal for no progress constituted an abuse of discretion. Two of these factors seem appropriate to apply to this case: (1) whether the plaintiff had been prosecuting its case with diligence, and (2) whether the defendant was actually prejudiced by the delay caused by plaintiff. Regarding the first, no evidence of foot-dragging by the plaintiff appears. As for the second, since counsel requested an adjournment to the afternoon only, and even after this request was denied, made the effort to appear before the court with witnesses ready to proceed, it is difficult to find any actual prejudice to the defendant.

We do not dispute that a trial judge’s concern for docket control may well be a legitimate justification for a dismissal.¹ Here, however, the case had not been languishing for an unduly long period. Further, the trial court specifically stated it had reserved two days for the trial of the cause. We fail to see why any inconvenience to the defendants by a four-hour delay could not have been assuaged by the imposition of appropriate costs against the plaintiffs.

The course chosen by the trial court under the circumstances here present was too harsh and constituted an abuse of discretion. The principle stated in Hormel v Helvering, 312 US 552, 557; 61 S Ct 719; 85 L Ed 1037 (1941), "[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them. * * * Orderly rules of procedure do not require sacrifice of the rules of fundamental justice”, is apposite here. Accordingly, we reverse and remand for a new trial.

W. Van Valkenburg, J., concurred.

1 The Court Administrator’s official statistics for the July, 1978 period (trial was July 27, 1978) indicate that this circuit had 483 cases pending for the period July 1, 1978, to December 31, 1978; for the period July 1, 1977, to June 30, 1978, the court had 545 cases pending. These figures compare with the statewide average of 882 cases pending per judge; with the Region III (18 southwestern counties, including this circuit) per judge average of 642 pending cases; and with the Region II per judge average of 935 cases. (These figures are the last official averages available, and are the averages for fiscal year 1976-1977. Unofficially, for 1977-78, the statewide average was 777 cases per judge, excluding Wayne and six other circuits not reporting). The per judge case average for Wayne County, again by way of contrast, was 1,471 for 1976-77; and from July 1, 1977, to June 30, 1978, the circuit court in Wayne County had 30,000 pending cases. It is obvious, therefore, that this circuit’s average caseload is well below the state and even below the Region III average. Furthermore, it appears that the average non-jury trial in this circuit takes between one-half and one entire day to complete.