Marquette v. Village of Fowlerville

• Decision Date: 04 May 1982
• Docket Number: Docket No. 55370
• Citation: 114 Mich.App. 92,318 N.W.2d 618
• Parties: James MARQUETTE and Joan Marquette, individually, and Joan Marquette d/b/a The Snack Shop, Plaintiffs-Appellants, v. The VILLAGE OF FOWLERVILLE, Defendant-Appellee. 114 Mich.App. 92, 318 N.W.2d 618
• Court: Court of Appeal of Michigan — District of US

Page 618

318 N.W.2d 618

James MARQUETTE and Joan Marquette, individually, and Joan Marquette d/b/a The Snack Shop Plaintiffs-Appellants, v. The VILLAGE OF FOWLERVILLE, Defendant-Appellee.

Docket No. 55370.

114 Mich.App. 92, 318 N.W.2d 618

Court of Appeals of Michigan.

Submitted Jan. 7, 1982.

Decided March 4, 1982.

Released for Publication May 4, 1982.

[114 MICHAPP 93] Joseph K. Cox, Fowlerville, for plaintiffs-appellants.

Seymour Beitner, P. C., Fowlerville, for defendant-appellee.

[114 MICHAPP 94] Before CAVANAGH, P. J., and BRONSON and BEASLEY, JJ.

PER CURIAM.

The trial court dismissed plaintiffs' complaint with prejudice, pursuant to GCR 1963, 504.2, and denied plaintiffs' motion to set aside the order of dismissal. Plaintiffs appeal by right.

This case began with a dispute over a zoning ordinance adopted by the Village of Fowlerville. In 1975, plaintiffs leased premises known as the Snack Shop within the Village of Fowlerville and began operating several coin-operated amusement devices. Sometime in 1976, the village council adopted an ordinance governing such a business operation. Plaintiffs applied for a license to continue operating their business, but their application was denied.

Plaintiffs then filed suit against defendant asking for declaratory relief and a permanent injunction against operation of the ordinance. After approximately three years of in-court activity consisting of default judgments taken, default judgments set aside, and pretrial conferences, the trial judge ordered the parties to submit briefs on certain legal questions which the parties had agreed would be decided by the judge without oral argument. Plaintiffs failed to file their brief within the prescribed time, so defendant moved under GCR 1963, 504.2, for involuntary dismissal of the case due to plaintiffs' failure to file their brief in compliance with the judge's pretrial order. At the hearing on the motion, the associate of plaintiffs' attorney, who was also his son, appeared and explained that the reason his father had failed to comply with the trial court's order was because of an eye problem which prevented him from doing any legal work during this period. Defense counsel informed the court that plaintiffs' counsel had [114 MICHAPP 95] previously stated that his brief had not been filed because he was behind due to a large caseload; an eye injury had not been mentioned. Plaintiffs' counsel then admitted to the trial court that his father's eye problem did not develop until after he had talked to defense counsel, which occurred after the brief was due. The trial judge then granted defendant's motion to dismiss plaintiffs' complaint with prejudice. Plaintiffs' motion for rehearing was subsequently granted, but the motion to set aside the dismissal was denied.

Plaintiffs appeal from this order, raising three issues: (1) Did the trial court abuse its discretion in dismissing plaintiffs' complaint involuntarily and with prejudice, pursuant to GCR 1963, 504.2, and in denying plaintiffs' motion to set aside the dismissal? (2) Did the trial court err reversibly by dismissing plaintiffs' complaint without making specific findings of fact? (3) Did the trial court impliedly declare that the zoning ordinance in question was valid?

GCR 1963, 504.2 states, in pertinent part:

"Involuntary Dismissal; Effect. For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits."

In discussing involuntary dismissal under this rule, this Court in Rose v. Rose, 10 Mich.App. 233, 236, 157 N.W.2d 16 (1968), stated:

"The reason for the rule is that if a plaintiff does not [114 MICHAPP 96] care enough to prosecute his action diligently, fairness requires that defendant be allowed to protect himself from the bother of filing answers to a multiplicity of complaints for the same claim, by relying upon the dismissal as ending the matter for all time. This affords plaintiff reasonable and ample opportunity to bring his action and sustain his claim, while demanding diligence on his part for the protection of the defendant."

In addition, the Supreme Court has said:

"We have recognized the inherent power of a court to control the movement of cases on its docket by a variety of sanctions including dismissal, discontinuance, or involuntary nonsuit even when requests for continuances are timely made and, lacking persuasive merit, are denied." Banta v. Serban, 370 Mich. 367, 368, 121 N.W.2d 854 (1963).

In the instant case, plaintiffs' failure to comply with the judge's requirement regarding the time for filing the briefs amounts to a violation of an "order of the court" and thus is within the scope of the court rule. Kromat v. Vestevich, 14 Mich.App. 291, 292, 165 N.W.2d 428 (1968). In determining whether the trial...