JACQUELINE RINAS V DIANE MERCER
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STATE OF MICHIGAN
COURT OF APPEALS
JACQUELINE RINAS, Personal Representative of
the ESTATE OF JOHN B. RINAS, IV, Deceased,
FOR PUBLICATION
October 7, 2003
9:15 a.m.
Plaintiff-Appellant,
v
DIANE MERCER, Personal Representative of the
ESTATE OF DAVID QUIROZ, JR., EARL
HARGROVE, JR., CELADON TRUCKING, and
JG'S LOUNGE,
Defendants/Cross-DefendantsAppellees,
No. 232686
Wayne Circuit Court
LC No. 00-001182-NI
Updated Copy
December 5, 2003
and
SOUTHERN DREAMS
Defendant/Cross-Plaintiff-Appellee.
Before: Saad, P.J., and Zahra and Schuette, JJ.
ZAHRA, J.
Plaintiff Jacqueline Rinas, personal representative of the Estate of John B. Rinas, IV,
deceased, instituted and dismissed two actions before bringing a third action against the same
defendants, Diane Mercer, personal representative of the Estate of David Quiroz, Jr., Earl
Hargrove, Jr., Celadon Trucking, JG's Lounge, and Southern Dreams, alleging the same claims
asserted in the prior actions. When plaintiff dismissed her second action, the trial court entered
an order of dismissal stating that the dismissal was "without prejudice and without costs to any
party." Thereafter, the trial court granted defendants' motions for summary disposition and
dismissed plaintiff 's third action, concluding that plaintiff 's claims were barred by the doctrine
of res judicata, because the dismissal of the second action constituted an adjudication on the
merits under MCR 2.504(A)(1). We are called upon to interpret MCR 2.504(A). We conclude
that under the facts presented in this case, subrule (A)(1) does not bar plaintiff 's third action.
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Subrule (A)(1) provides that a second dismissal of an action constitutes an adjudication on the
merits only when the dismissal is accomplished by filing a notice of dismissal without an order
of the court and on the payment of costs. Here, the second action was dismissed by an order of
the court expressly providing that the dismissal of plaintiff 's claims was without prejudice and
without costs. Such a dismissal is not a dismissal pursuant to subrule (A)(1). We reverse and
remand for further proceedings consistent with this opinion.
I. Facts and Procedure
On March 17, 1999, plaintiff filed a complaint against defendants. Plaintiff brought
claims of negligence against the estate of Quiroz, negligence and gross negligence against
Hargrove and Celadon Trucking Service,1 and dramshop act2 claims against JG's Lounge and
Southern Dreams. When plaintiff realized that she had filed her complaint before Mercer had
been appointed personal representative of the estate of Quiroz,3 she submitted to the trial court an
order of dismissal "without prejudice and without costs to any party." The trial court entered this
order of dismissal. Plaintiff later filed a second complaint against the same defendants that
asserted claims identical to the first complaint. This time, plaintiff properly named Mercer as the
personal representative of the estate of Quiroz. However, when plaintiff failed to serve all
defendants with a copy of the second complaint before the expiration of the summons, plaintiff
again submitted to the trial court an order of dismissal "without prejudice and without costs to
any party." The trial court again accepted and entered plaintiff 's order of dismissal.
On January 12, 2000, plaintiff filed a third complaint against defendants, alleging claims
identical to the first two complaints. On July 7, 2000, the trial court entered a notice of default
against JG's Lounge for evading service and failing to answer plaintiff 's third complaint.
Defendants Mercer, Hargrove, Celadon Trucking Service, and Southern Dreams moved for
summary disposition under MCR 2.116(C)(7), arguing that, under MCR 2.504(A)(1), plaintiff 's
second voluntary dismissal constituted an adjudication on the merits and barred plaintiff from
bringing another action under the doctrine of res judicata. Plaintiff opposed the motions for
summary disposition and moved for relief from the prior orders of dismissal under MCR
1
Plaintiff alleged that Celadon Trucking Service was vicariously liable for Hargrove's
negligence and gross negligence.
2
Formerly MCL 436.22, repealed by 1998 PA 58.
3
As a condition of maintaining a dramshop action, plaintiff was required to "name and retain"
the alleged intoxicated person until the litigation is concluded. MCL 436.22(6), repealed by
1998 PA 58; Green v Wilson, 455 Mich 342, 353; 565 NW2d 813 (1997). In this case, plaintiff
named Mercer, as personal representative of the estate of Quiroz, as the alleged intoxicated
person in her initial complaint. But because Mercer had not yet been appointed as personal
representative when plaintiff filed her complaint, the alleged intoxicated person was not properly
named in plaintiff 's first complaint.
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2.612(A). In August 2000, the trial court denied plaintiff 's motion for relief from the prior
orders, and granted defendants' motions for summary disposition, reasoning that dismissal of
plaintiff 's second action constituted an adjudication on the merits under MCR 2.504(A)(1). The
trial court then entered orders dismissing, with prejudice, plaintiff 's claims against defendants
Mercer, Hargrove, Celadon Trucking Service, and Southern Dreams. The trial court later
entered an order denying plaintiff 's motion for a default judgment against JG's Lounge and
dismissing plaintiff 's claims against JG's Lounge for the same reason it had dismissed plaintiff 's
claims against the other defendants. Plaintiff appeals as of right.
II. Analysis
A. Standard of Review
The trial court granted summary disposition for defendants Mercer, Hargrove, Celadon
Trucking Service, and Southern Dreams under MCR 2.116(C)(7) after determining that
plaintiff 's claims were barred under the doctrine of res judicata. The trial court also dismissed
the claims against JG's Lounge under the doctrine of res judicata.
This Court reviews a trial court's decision on a motion for summary
disposition pursuant to MCR 2.116(C)(7) de novo to determine whether the
moving party was entitled to judgment as a matter of law. The applicability of the
doctrine of res judicata is a question of law that is also reviewed de novo.
[Stoudemire v Stoudemire, 248 Mich App 325, 332; 639 NW2d 274 (2001)
(citations omitted).]
"Similarly, interpretation of a court rule, like a matter of statutory interpretation, is a question of
law that this Court reviews de novo." CAM Constr v Lake Edgewood Condo Ass'n, 465 Mich
549, 553; 640 NW2d 256 (2002).
B. Plaintiff 's Second Voluntary Dismissal Did Not Act as an
Adjudication on the Merits Under MCR 2.504(A)(1)
Plaintiff argues that the trial court erred in dismissing her claims against defendants,
because dismissal of her second action did not constitute an adjudication on the merits under
MCR 2.504(A)(1). Plaintiff argues that the second action was not dismissed "without an order of
the court and on the payment of costs," as set forth in the subrule (A)(1)(a). We agree. In
addressing plaintiff 's argument, we must interpret MCR 2.504(A). Our Supreme Court has
articulated the proper method for interpreting a court rule:
"When called on to construe a court rule, this Court applies the legal
principles that govern the construction and application of statutes. McAuley v
General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly,
we begin with the plain language of the court rule. When that language is
unambiguous, we must enforce the meaning expressed, without further judicial
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construction or interpretation. See Tryc v Michigan Veterans' Facility, 451 Mich
129, 135; 545 NW2d 642 (1996). Similarly, common words must be understood
to have their everyday, plain meaning. See MCL 8.3a; see also Perez v Keeler
Brass Co, 461 Mich 602, 609; 608 NW2d 45 (2000)." [CAM Constr, supra at
554, quoting Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612
NW2d 116 (2000).]
MCR 2.504(A)(1) provides:
Subject to the provisions of MCR 2.420 and MCR 3.501(E), an action
may be dismissed by the plaintiff without an order of the court and on the
payment of costs
(a) by filing a notice of dismissal before service by the adverse party of an
answer or of a motion under MCR 2.116, whichever first occurs; or
(b) by filing a stipulation of dismissal signed by all the parties.
Unless otherwise stated in the notice of dismissal or stipulation, the
dismissal is without prejudice, except that a dismissal under subrule (A)(1)(a)
operates as an adjudication on the merits when filed by a plaintiff who has
previously dismissed an action in any court based on or including the same claim.
Pursuant to the language of subrule (A)(1), a plaintiff 's dismissal of claims previously
asserted and dismissed constitutes an adjudication on the merits only when it is a dismissal under
subrule (A)(1)(a). Subrule (A)(1)(a) provides, in pertinent part, that "an action may be dismissed
by the plaintiff without an order of the court and on payment of costs by filing a notice of
dismissal . . . ." (Emphasis added.) Here, plaintiff 's second action was not dismissed by plaintiff
"without an order of the court and on payment of costs," as set forth in subrule (A)(1)(a). Our
conclusion is not altered by use of the permissive term "may" in this subsection of the rule.
Mandatory language could not be used in this rule because it addresses voluntary, rather than
mandatory, dismissals of actions. Stated differently, a plaintiff may or may not dismiss a suit
voluntarily—a plaintiff is never required to dismiss a suit voluntarily. To the extent the plaintiff
seeks to effectuate a voluntary dismissal, it is only a dismissal pursuant to subrule (A)(1)(a) if it
is accomplished "without an order of the court and on payment of costs by filing a notice of
dismissal . . . ."4
4
A voluntary dismissal by stipulation is governed by MCR 2.504(A)(1)(b), and a voluntary
dismissal by order of the court is governed by MCR 2.504(A)(2).
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We also find unpersuasive defendants' argument that, because the trial court entered this
order of dismissal without conducting a hearing and without requiring plaintiff to file a motion
for dismissal, the entry of the order by the trial court should be deemed an administrative
function that does not preclude the res judicata effect of subrule (A)(1)(a). Subrule (A)(1)(a)
does not provide that an action may be dismissed by court order as long as there was no motion
and hearing before the court. Instead, the rule expressly provides that the dismissal under
subrule (A)(1)(a) be accomplished without an order of the court. Plaintiff submitted to the court
an order of voluntary dismissal that expressly provided the dismissal was without prejudice and
without payment of costs. The trial court accepted plaintiff 's proposed order and dismissed the
suit on the terms plainly expressed in the order—without prejudice and without payment of costs
to any party. When a dismissal is pursuant to subrule (A)(1)(a), the trial court does not enter an
order. Rather, the dismissal is effectuated by the filing of a notice of dismissal through the clerk
of the court.5
Plaintiff 's second dismissal was not a dismissal under subrule (A)(1)(a). Dismissal of
plaintiff 's second action falls squarely under MCR 2.504(A)(2), which provides, "[e]xcept as
provided in subrule (A)(1), an action may not be dismissed at the plaintiff 's request except by
order of the court on terms and conditions the court deems proper." A dismissal under subrule
(A)(2) is without prejudice unless the order specifies otherwise. MCR 2.504(A)(2)(b). A
dismissal under subrule (A)(2) does not operate as an adjudication on the merits pursuant to
subrule (A)(1).
We recognize that subrule (A)(1) is inartfully worded and difficult to comprehend. Still,
a court rule, like a statute or a contract, may not be declared ambiguous or void merely because
its meaning is difficult to discern. Where, as here, the language of a court rule leads to a single
reasonable interpretation, courts are required to implement the court rule as written. Colucci v
McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003).
We further recognize that this court rule lacks effectiveness, at best. As a general matter,
courts operate through written orders. MCR 2.602(A); Tiedman v Tiedman, 400 Mich 571, 576;
255 NW2d 632 (1977). Most practitioners dismiss an action by submitting an order of dismissal
to the court.6 We also recognize that a plaintiff would rarely consent to pay undetermined costs
to a party or parties who have not been served as a condition precedent to the privilege of
voluntarily dismissing an action by notice. Nonetheless, the fact that the effectiveness of a court
5
Further, the notice of dismissal pursuant to subrule (A)(1)(a) must include a commitment by
plaintiff to pay as yet undetermined costs.
6
We are unaware of any court rule or statute that requires dismissal of actions be accomplished
only by court order. Significantly, subrule (A)(1) expressly states that a dismissal may be
obtained without an order of the court by filing a notice of dismissal.
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rule is diminished by the enforcement of the plain meaning of that rule does not justify
modification of the rule by judicial fiat.
Reversed and remanded. We do not retain jurisdiction.7
Schuette, J., concurred.
/s/ Brian K. Zahra
/s/ Bill Schuette
7
In light of our disposition above, we need not address plaintiff 's other arguments on appeal.
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