Heins v. Sutphin

257 N.W.2d 169, 76 Mich. App. 562, 1977 Mich. App. LEXIS 947

• Court: Michigan Court of Appeals
• Decided: July 6, 1977
• Docket: Docket 28454
• Status: Published

Opinions

D. C. Riley, J.

Plaintiffs appeal, by delayed leave granted, an order of the Wayne Circuit Court denying reinstatement of their cause of action which had been dismissed for lack of progress. We adopt the recitation of facts as outlined in the dissent.

Plaintiffs contend the lower court abused its discretion in denying reinstatement. We agree. Even though appellate review is limited to the determination whether there was any justification for the lower court’s decision, Heaney v Verson Allsteel Press Co, Inc, 64 Mich App 597; 236 NW2d 155 (1975), we find no rational basis to support the denial of reinstatement.

Heaney, supra, suggests the following factors as relevant:

(1) Whether the opposing party had an equal right to notice the case for trial;

(2) Whether the failure to praecipe was deliberate or unexplained;

(3) Whether plaintiffs had been prosecuting the claim with due diligence; and

(4) Whether defendant was actually prejudiced by a delay attributable to plaintiffs.

In the present case, factor (1) clearly tilts in plaintiffs’ favor. The published notice did inform defense counsel that the case was on the no progress docket. Hence any delay caused by the dismissal for lack of progress could have been rectified by the defendant. See WCCCR 1970, 9.8, prior to its amendment on November 7, 1973.

Factor (2) does not apply since an at issue praecipe was filed. At any rate, plaintiffs’ failure to inform the court that the praecipe had been filed is explained by the erroneously published notice which misspelled the name of plaintiffs’ prior counsel. Of course, plaintiffs cannot be held accountable for a typographical error over which they had no control.

Factor (3), the degree of diligence, also supports plaintiffs. It appears that Longton, plaintiffs’ fourth attorney, was prosecuting the case with due diligence: he filed a motion for mediation, interrogatories to defendant, and a deposition.

Finally, factor (4), the degree of actual prejudice, similarly leans favorably toward plaintiffs. It does not appear that defendant has been prejudiced. Defendant did note in his objection to plaintiffs’ motion for reinstatement:

"Witnesses will have died or moved, medical records will have been destroyed or lost, memories will have become distant and in general the defendant has been put at a definite disadvantage by this incredible delay all accomplished due to the plaintiffs’] misfeasance.”

However, these allegations appear to be nothing more than a parade of possible but not actual horribles. In fact, the witnesses had already been deposed, thus preserving their testimony.

It may well be that the court took into consideration the prior dismissal for no progress. However, even if so, the trial court should not have penalized plaintiffs for the earlier dismissal since in previously ordering reinstatement the court noted that the "failure to take the steps for proceedings in said action were not due to plaintiffs’ fault or lack of responsible diligence”.

Thus we conclude, after careful review of the record, that the lower court abused its discretion in refusing reinstatement. The court is directed to reinstate plaintiffs’ suit. So ordered.

Reversed and remanded.

J. H. Gillis, J., concurred.