Corley v. Krawczak

34 Mich. App. 472 (1971) 191 N.W.2d 514 CORLEY v. KRAWCZAK Docket No. 10116. Michigan Court of Appeals. Decided June 23, 1971. Bellinson & Doctoroff (Ronald D. Feldman, of counsel), for plaintiffs. *473 Sullivan, Sullivan, Ranger & Ward (Richard A. Bone, of counsel), for defendant Krawczak. Before: V.J. BRENNAN, P.J., and J.H. GILLIS and T.M. BURNS, JJ. J.H. GILLIS, J. This is an appeal as of right from an order entered granting summary judgment for the defendants in a negligence case. On January 3, 1963, plaintiff was seriously injured when struck by a wrecker operated by an employee of defendant Krawczak. As a result of this accident a suit was filed by plaintiffs against defendants on May 6, 1963. This first suit was dismissed by the trial court on November 10, 1967, for lack of progress after a motion to dismiss was filed by defendants. The dismissal of this first suit was appealed to this Court and was affirmed in Corley v. Krawczak (1969), 16 Mich App 176. On February 19, 1970, plaintiffs filed a new lawsuit against defendants alleging the same cause of action as in the first suit. A motion for summary judgment was filed by defendants on the grounds that the dismissal of the first suit for no progress acted as an adjudication upon the merits under GCR 1963, 504.2. The trial court granted defendants' motion for summary judgment and plaintiffs appeal. Plaintiffs argue on appeal that the prior dismissal did not act as an adjudication upon the merits, so this subsequent action should not be barred. GCR 1963, 504.2 states that a dismissal for no progress acts as an adjudication upon the merits of the action unless the court in its order specifically states otherwise. In the instant case the order of dismissal entered in the prior suit did not state that the dismissal was to be without prejudice. Therefore, under GCR 1963, 504.2, the prior dismissal acts *474 as an adjudication upon the merits and bars this subsequent suit. Rose v. Rose (1968), 10 Mich App 233. See, also, Green v. Wayne Soap Company (1971), 33 Mich App 74. Affirmed. Costs to appellee. V.J. BRENNAN, P.J., concurred. T.M. BURNS, J. (concurring). I agree that the dismissal for lack of progress in this case was an adjudication on the merits. I would point out, however, the difference between the instant case, where the dismissal was based upon defendants' motion, and the question presented to this Court in Caughey v. Rozycki (1970), 22 Mich App 317, where the dismissal for lack of progress was a purely perfunctory one performed by the trial court. In Caughey, a panel of this Court, on which I participated, held that a no-progress dismissal which was handled ministerially by the trial court would not constitute an adjudication on the merits. However, the Court did, in an opinion by Judge LEVIN, state: "If a defendant were to move for dismissal because of a lack of prosecution and an order of dismissal was entered, such an order would, no doubt, operate an adjudication on the merits." Caughey v. Rozycki, supra, p 322. In the instant case the defendants did move for the dismissal. Therefore, in this instance, I agree that the dismissal should operate as an adjudication on the merits.