African Methodist Episcopal Church v. Shoulders
196 N.W.2d 16
Mich. Ct. App.
1972
Check Treatment
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 *212 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. Gromger v. Lundberg (1971), 32 Mich App 462. Normally, such a motion should be gianted unless defendant will be legally prejudiced as a result. Durham v. Florida East Coast Railway Co. (CA5, 1967), 385 F2d 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 protect defendant. See American Cycnamid Co. v. McGhee (CA5,1963), 317 F2d 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 *213 of this suit. They should not be forced to bear the expense of a new lawsuit in which they would he 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 he 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).

Notes

1

GOR 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 eases 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 *213 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.