            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                             COURT OF APPEALS



 OAKWOOD HEALTHCARE, INC.,                                             UNPUBLISHED
                                                                       February 4, 2020
                Plaintiff,

 and

 TIFFANY WIRICK,

                Intervening Plaintiff-Appellant

 v                                                                     No. 343478
                                                                       Wayne Circuit Court
 FARMERS INSURANCE EXCHANGE,                                           LC No. 15-007343-NF

                Defendant/Cross-Defendant-
                Appellee,
 and

 STATE FARM MUTUAL AUTOMOBILE
 INSURANCE COMPANY,

                Defendant/Cross-Plaintiff


Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

        Intervening plaintiff, Tiffany Wirick, appeals as of right from an order denying her motion
for reconsideration of her (second) motion to reinstate her case in the trial court after it had been




                                                  -1-
administratively closed by the court without notice. Wirick argues that the trial court abused its
discretion in denying her motion for reinstatement. We reverse and remand.

                                   I. STATEMENT OF FACTS

        In January 2015, Wirick was walking down a road in Dearborn, Michigan, when an
automobile insured by defendant/cross-defendant,1 Farmers Insurance Exchange, struck and
injured her. Plaintiff, Oakwood Healthcare, Inc, treated Wirick’s injuries. In June 2015, plaintiff
filed a complaint against defendant alleging breach of contract in violation of the no-fault act,
MCL 500.3101 et seq., and amended the complaint the following month to add defendant/cross-
plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), as a codefendant. 2
After the court granted Wirick’s motion to intervene, she filed an intervening complaint claiming
that defendant and State Farm were liable to her for all no-fault benefits arising out of the incident,
but they had refused or neglected to pay. State Farm eventually filed a cross-complaint against
defendant, alleging that defendant was first in priority for payment of Wirick’s no-fault benefits
pursuant to MCL 500.3115 and that failure to assume its responsibilities for Wirick’s past and
future benefits breached the no-fault act. By stipulation of the parties, the court dismissed plaintiff
from the case with prejudice.

        Defendant filed motions for summary disposition of State Farm’s claims and of Wirick’s
claims pursuant to MCR 2.116(C)(10), and State Farm filed a motion for summary disposition of
defendant’s claims pursuant to MCR 2.116(I)(2). After a hearing on the motions, the trial court
entered an order granting State Farm’s motion for summary disposition, denying defendant’s
motions for summary disposition, ordering defendant to reimburse State Farm for all no-fault
benefits it paid on behalf of Wirick and to provide no-fault benefits for Wirick, and dismissing
State Farm from the suit. The trial court denied defendant’s motion for reconsideration. Upon
defendant’s motion, the court later entered an order staying execution of the judgment for State
Farm to allow defendant an opportunity to consider filing an appeal in this Court. When defendant
did not timely proceed with the appellate process, State Farm filed a motion to lift the stay and
execute the judgment. Subsequently, defendant and State Farm signed a stipulated order reducing
to a judgment the court’s prior order entitling State Farm to reimbursement for no-fault benefits
paid to or on behalf of Wirick. On November 28, 2016, State Farm filed an acknowledgment that
defendant had satisfied the judgment in full. At this point, only defendant and Wirick were left as
parties in the lawsuit.




1
  For ease of reference, we refer to Farmers Insurance Exchange as “defendant” throughout the
remainder of this opinion, because defendant/cross-plaintiff State Farm Mutual Automobile
Insurance Company is no longer a party to this case.
2
 State Farm was the insurer assigned to the claim under the Michigan Assigned Claims Plan
(MACP).


                                                 -2-
        On December 13, 2016, the lawsuit was administratively closed.3 Wirick filed a motion to
reinstate in February 2017. She alleged that she did not receive a notice of the trial court’s intent
to close the case. She claimed that, after defendant satisfied the judgment in favor of State Farm,
she and defendant had continued discovery and awaited the date for a settlement conference.
Wirick asked the trial court to reinstate the case pursuant to MCR 2.502(C). The trial court held a
hearing on the motion to reinstate. Because only Wirick’s counsel was present, the trial court took
the motion under advisement and scheduled a special conference where attorneys for both parties
could discuss how to move forward. A special conference was held in the court’s chambers on
March 2, 2017, with both parties’ counsel in attendance; no transcript of the conference was
created. Subsequently, a trial date was set for July 10, 2017.4

        In June 2017, defendant filed an emergency motion to adjourn the trial for a short period
in order to address fallout from Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich
191; 895 NW2d 490 (2017), issued the prior month. At the hearing on defendant’s motion, the
trial court discovered that Wirick’s case had not, in fact, been reinstated, even though he had given
the parties a trial date. The court clerk indicated that there was no order of reinstatement filed.
The court denied defendant’s motion to adjourn the trial as “moot,” concluding, “there’s no trial
because there’s no case,” stating that the case “doesn’t exist.”

        In July, 2017, Wirick filed a second motion to reinstate, to which defendant filed a
concurrence. At the hearing on the motion, the trial court appeared to believe that there had been
a couple of trial dates in the matter and wanted to know why the trial dates did not “go.”5 Wirick’s
counsel explained that it was because the case was never actually reinstated in the system. The
trial court denied the motion, stating “it’s too late,” and instructed Wirick’s attorney to submit a
corresponding order.

        Wirick filed a motion for reconsideration. In addition to including the facts from her first
motion for reinstatement, Wirick recounted the March 2, 2017 special conference held in the trial
court’s chambers at which the court stated the case was reinstated, a July 10, 2017 trial date was
set, and the parties were instructed to engage in facilitation. Wirick indicated that the parties had
continued to engage in discovery and attempted to facilitate a resolution. As for the court’s reason
for not granting her second motion to reinstate the case, she reminded the court that at the June 20,
2017 emergency motion to adjourn trial, the court denied the motion because the case had not been
reinstated, and thus, there was no trial date to adjourn. The trial court denied Wirick’s motion
without explanation. This appeal followed.

                                          II. DISCUSSION

       Wirick argues that the trial court abused its discretion by dismissing her case, and that
nothing in the record warrants the harsh sanction of dismissal. Although Wirick’s claim of error


3
 No order of dismissal appears in the lower court electronic record, although it is itemized in the
Register of Actions as “Case-Admin Closure- Lack of Order Entry, Signed and Filed.”
4
    Both the special conference and the scheduled trial date appear on the Register of Actions.
5
    According to the Register of Actions, July 10, 2017 was the only trial date scheduled.

                                                  -3-
is better phrased as a refusal to reinstate, we agree. This Court reviews for an abuse of discretion
a trial court’s decision concerning a motion to reinstate an action. Wickings v Arctic Enterprises,
Inc, 244 Mich App 125, 138; 624 NW2d 197 (2000). “An abuse of discretion occurs when the
trial court’s decision falls outside the range of reasonable and principled outcomes.” Frankenmuth
Ins Co v Poll, 311 Mich App 442, 445; 875 NW2d 250 (2015) (quotation marks and citation
omitted).

       A trial court may, on its own initiative, dismiss a case for lack of progress when “no steps
or proceedings appear to have been taken within 91 days” and the parties do not show “that
progress is being made or that the lack of progress is not attributable to the party seeking
affirmative relief.” MCR 2.502(A). When notice is required, attorneys and parties must be given
28 days’ notice of the impending dismissal. MCR 2.502(B); MCR 2.501(C). On a showing of
good cause, and on terms it deems just, a court may reinstate an action dismissed for lack of
progress. MCR 2.502(C). “On reinstating an action, the court shall enter orders to facilitate the
prompt and just disposition of the action.” Id. Among the factors a court may consider when
determining whether good cause exists to reinstate an action are the following:

       (1) procedural or technical error in dismissing the case for lack of progress, (2) the
       movant’s actual diligence before dismissal, (3) justification for the movant’s failure
       to make progress before dismissal, (4) the movant’s diligence in attempting to settle
       the case or a prompt motion to reinstate it following dismissal, and (5) potential
       prejudice to the nonmovant if the action is reinstated. [Wickings, 244 Mich App at
       142.]

“MCR 2.502 does not prescribe a time limit for moving to reinstate an action.” Id. at 139.

         Our review of the record convinces us that the trial court abused its discretion when it
denied Wirick’s (second) motion for reinstatement. Wirick established good cause in her initial
motion for reinstatement of the case. Failure to notify the parties of the possibility of dismissal
constitutes a technical defect in the dismissal, and establishes sufficient grounds to reinstate. See
Vicencio v Ramirez, 211 Mich App 501, 504; 536 NW2d 280 (1995) (“It is improper to dismiss a
case where the required notice was not given.”). In addition, Wirick provided adequate
justification for any perceived failure to progress prior to the dismissal: Wirick explained that she
and defendant had not engaged with the trial court in the months following their case evaluation
because they were still pursuing discovery and awaiting the trial court’s scheduling of a settlement
conference. While the trial court had been reviewing State Farm’s and defendant’s motions for
summary disposition, State Farm continued to pay Wirick’s claims. Once State Farm was
dismissed from the case, Wirick and defendant began engaging in independent medical
examinations as part of the ongoing discovery process. Moreover, Wirick diligently filed a motion
to reinstate, less than two months after the case was dismissed. Defendant did not present any
evidence that it was prejudiced by any alleged delay on the part of Wirick.

        Both the court and the parties appear to have understood that the case was reinstated as a
consequence of the March 2017 conference in the court’s chambers. This is demonstrated by the
scheduling of a July 10, 2017 trial date, the parties’ continued engagement in discovery, and by
the surprise of the court and the parties at the June 2017 hearing upon discovering that an order for
reinstatement had not been entered. The court stated on the record, “I gave the trial date and an

                                                -4-
order.” Although the court clerk remarked on the record that “[t]hey didn’t ever file[] the order,”
which appears to implicate Wirick, Wirick’s counsel states in her brief to this Court with respect
to the March 2017 special conference, “the court reinstated the case. The Judge walked to the
court clerk and asked him to reinstate the case and issue a trial date.” Because there is no record
of the March conference in chambers, and given the peculiarities of this case, it is not clear what
arrangements the parties understood to have been made and what filing responsibilities were left
to them.

        The trial court seemed to justify its denial of Wirick’s (second) motion to reinstate based
on the failure of anyone to show up for the scheduled trial date and the court’s opinion that it was
“too late” to grant the motion.6 We conclude that it is an abuse of discretion to find fault with a
party for not attending a scheduled trial date when the court itself, only a month earlier and on the
record, expressly indicated that there was no trial date to adjourn because there was no case. The
court’s statement that it was “too late” to grant the motion for reinstatement arguably reflects the
court’s previously expressed concern that the case was dragging on for too long. We have
acknowledged in the past that a trial court has the inherent authority to control its own docket. See
Baynesan v Wayne State Univ, 316 Mich App 643, 651;894 NW2d 102 (2016). However, the
underlying purpose of a dismissal for failure to progress is not to close lengthy cases, but rather to
dismiss lawsuits that are not actively pursued with due diligence. See Robinson v Washtenaw
Circuit Judge, 242 Mich 548, 550; 219 NW 661 (1928); Heaney v Verson Allsteel Press Co, Inc,
64 Mich App 597, 600; 236 NW2d 155 (1975). In addition, we have already indicated that MCR
2.502 does not set time limits for moving to reinstate an action. Wickings, 244 Mich App at 139.

         “Dismissal is a drastic step that should be taken cautiously.” Vicencio, 211 Mich App at
506. This is not a case involving the accumulation of “dead wood” in the circuit court. Robinson,
242 Mich at 550. The record shows that Wirick and her attorney actively engaged in pursuit of
Wirick’s claims, that she cooperated with defendant, and that she did not have a history of violating
the court’s orders. The record shows that Wirick had diligently pursued reinstatement of the case
after its initial dismissal, and again after she learned that it had not been reinstated as the parties
thought. The trial court did not offer adequate justification for failing to reinstate the lawsuit upon
Wirick’s second motion to reinstate. Given this record, the purpose of MCR 2.502 is not furthered
by refusing to reinstate Wirick’s case. Accordingly, we reverse the court’s order denying Wirick’s
second motion to reinstate the case and remand the matter to the trial court for further proceedings.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                               /s/ Jane M. Beckering
                                                               /s/ Mark J. Cavanagh
                                                               /s/ Cynthia Diane Stephens


6
 Although the trial court did not mention at the hearing a failure by Wirick to file a proposed order
of reinstatement, it is not clear in this instance how, or whether, the conference in chambers
affected any expectation to this effect.

                                                 -5-
