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Wickings v. Arctic Enterprises12/26/2000
FOR PUBLICATION
9:30 a.m.
In Docket No. 218171, plaintiff Gary Wickings appeals of right the trial court's February 19, 1999, order denying his motion to reinstate his original product liability action against defendant Arctic Enterprises, Inc. In Docket No. 220586, plaintiff Gary Wickings appeals as of right the trial court's June 18, 1999, order granting defendant Arctic Enterprises' motion for summary disposition pursuant to MCR 2.116(C)(7) in the action Wickings filed after the trial court denied his motion to reinstate the original action or compel arbitration. We affirm in both appeals.
I. Factual Background
Both of these consolidated cases arise out of the same factual circumstances. According to the complaint and the trial court's description of the events in this case in its scheduling order in Docket No. 218171, Wickings was using a twenty-year-old Arctic Cat El Tigre snowmobile when the track slipped off the vehicle on December 1, 1992. Wickings alleged that he suffered "open fractures of the right tibula and fibula," as well as pain and suffering, psychological injuries, humiliation, and lost wages. Evidently, Arctic had not manufactured snowmobiles in more than fifteen years by the time Wickings filed suit, it no longer had immediate access to related documents, and it could locate only one employee who knew about that portion of its business.
II. Docket No. 218171
Wickings filed his complaint in this action on November 30, 1995, alleging negligence and breach of warranty. Arctic, which retained Alvin Rutledge and Mary Dresbach as counsel, answered the complaint, generally denying the allegations and asserting a number of affirmative defenses not relevant to this appeal. Following a pretrial hearing on March 18, 1996, Wickings initially made progress toward complying with the scheduling order. The parties attended a second pretrial hearing on April 10, 1997, at which time they told the trial court that the case was going to binding arbitration, according to the May 12, 1997, notice in the lower court record. The trial court then advised the parties, "A judgment or final order reflecting the proceeding noted [arbitration] shall be filed with 30 days of the issuance of this notice. Failure to file said order will result in dismissal of this action without further notice to the parties." There is no further information in the record concerning the parties' conduct before the trial court, sua sponte, entered an order dismissing the action "without prejudice" on June 13, 1997.
Eighteen months later, on January 19, 1999, Wickings filed a motion to compel arbitration or to reinstate the action. He argued that Arctic should be bound by the agreement between the parties' attorneys either to submit to arbitration or to reinstate the action without asserting the statute of limitations as a defense. In the brief, he added some factual details not apparent from the record. For instance, he explained that the case had proceeded through mediation and the parties had attempted to settle the case without success before the trial court dismissed it. Attached to the brief were several letters indicating what occurred after the trial court dismissed the case. In the first letter, dated July 7, 1997, Jeffrey Feldman, Wickings' attorney, sent a letter to Dresbach, Arctic's counsel, which briefly stated:
Please send me the draft arbitration agreement, per our discussions, at your earliest convenience. Otherwise, I will need to take you up on your assurance that you would sign a Stipulation to Reinstate, and not assert the Statute of Limitations. I'm beginning to lose sleep over this.
Two months later, o
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