AFRICAN M E CHURCH v. SHOULDERS, 38 Mich. App. 210 (1972)

196 N.W.2d 16

AFRICAN METHODIST EPISCOPAL CHURCH v. SHOULDERS

Docket No. 11644.Michigan Court of Appeals.
Decided January 26, 1972.

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Appeal from St. Clair, Halford I. Streeter, J. Submitted Division 2 November 3, 1971, at Lansing. (Docket No. 11644.) Decided January 26, 1972.

Complaint by the African Methodist Episcopal Church, St. Paul African Methodist Episcopal Church of Port Huron, Michigan, Fred Porter, Wennie Kennedy, Reverend Mr. Joseph L. Roberts, and Reverend Mr. Delano Bowman against Earl Shoulders, Eleger Harvey, James Stanley, James Johnson, John Doe, and Mary Roe for an injunction preventing defendants from obstructing access to church buildings and interfering with religious worship, and for an accounting. Summary judgment for plaintiffs. Defendants appealed. Remanded for trial, 31 Mich. App. 290 (1971). Plaintiffs’ motion to dismiss granted. Defendants appeal. Reversed with instructions.

Bush, Luce, Henderson, Black Bankson, for plaintiffs.

Touma, Watson Andresen, for defendants.

Before: DANHOF, P.J., and BRONSON and TARGONSKI,[*] JJ.

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

PER CURIAM.

This matter has been before this Court on a prior occasion African Methodist Episcopal Church v. Shoulders (1971), 31 Mich. App. 290. Upon remand the trial judge, over objection, granted

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plaintiffs’ motion to dismiss their complaint pursuant to GCR 1963, 504.1(2).[1] No terms or conditions were attached to the order of dismissal. Defendants appeal.

Plaintiffs argue that the grant or denial of a voluntary dismissal is within the sound discretion of the trial judge Roberson v. Thomas (1968), 13 Mich. App. 384. We agree; however, in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays Granger v. Lundberg (1971), 32 Mich. App. 462. Normally, such a motion should be granted unless defendant will be legally prejudiced as a result. Durham v. Florida East Coast Railway Co. (CA5, 1967), 385 F.2d 366. As the purpose of GCR 1963, 504.1(2) is to protect defendant from the abusive practice of dismissal after much time and effort has been put into a lawsuit, any dismissal should be on terms and conditions which protec defendant. See American Cyanamid Co. v. McGhee (CA5, 1963), 317 F.2d 295.

Applying these principles to the instant case, we find the order of dismissal to be in error. Defendants terminated their church membership pursuant to a court order sought by plaintiffs. This Court has stated that defendants have a valid defense to plaintiffs’ complaint. If plaintiffs do not wish to pursue their complaint, then a dismissal should seek to return the parties to their positions prior to the inception of this lawsuit. Further, the fact that defendants have not filed a counterclaim is immaterial.[2] Defendants have a right to an adjudication

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of this suit. They should not be forced to bear the expense of a new lawsuit in which they would be plaintiffs. Plaintiffs’ other contentions are frivolous. The order to dismiss is set aside and the matter remanded for trial, or, if the plaintiffs renew their motion, it shall be granted only upon such terms and conditions as will place the parties in the same positions they occupied prior to the inception of this suit. GCR 1963, 504.1(2).

[1] GCR 1963, 504.1(2) is based on FR Civ P 41(a) (2). Since there is little case law in Michigan on this rule, we look to the Federal cases for guidance in this instance.

[2] Plaintiffs’ reliance on defendants’ failure to file a counterclaim is misplaced. That part of the court rule dealing with counterclaims applies only when one has been filed. The rule, however, is not to be read to mean that a plaintiff has an absolute right to dismissal if a counterclaim is not filed. Such a reading would be contrary to the rule’s purpose.

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