First Western v. Thomas

----ooOoo----

Allan B. Thomas,
Plaintiff and Appellant,

v.

3D Communications, Von Gordon, and Ron Davies,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980012-CA

F I L E D
April 15, 1999
  1999 UT App 118 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
David W. Steffensen, Salt Lake City, for Appellant
Lynn S. Davies and Kent W. Hansen, Salt Lake City, for Appellees

-----

Before Judges Wilkins, Davis, and Jackson.

DAVIS, Judge:

Plaintiff appeals the trial court's November 24, 1997 Order granting defendants' motion for summary judgement. In its Order, the trial court stated that "[a]ll issues raised in plaintiff's Second Amended Complaint have been previously disposed by the court's Order of June 4, 1990" and that "[n]o activity has occurred in this matter since September 27, 1991, suggesting that the parties consider this matter either to be resolved, or not to warrant further action." Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). Because summary judgment is a question of law, we accord no deference to the trial court, reviewing its legal conclusions for correctness. See Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996).

The trial court's 1990 Order reads as follows:

Leave is granted only to file a new Amended Complaint that briefly and concisely states any cause of action remaining to plaintiff; based on the record before the court, if any cause of action remains herein, it would be for breach of contract, if any, arising out of 3D Communications' resale of the telephone switch for plaintiff Thomas.

First, plaintiff's Second Amended Complaint contained factual allegations that, for all intents and purposes, mirrored those found in the original Complaint. In fact, the only real difference between the original Complaint and the Amended Complaint was plaintiff's attempt to expand upon a legal theory that had been dismissed in an attempt to gain a more favorable interest rate of 18% on the $22,000 judgment rather that the "market rate on interest-bearing check accounts" as the 1990 Order had directed. Because the issues raised in plaintiff's Second Amended Complaint were previously disposed of by the trial court's 1990 Order, which plaintiff did not appeal, we affirm the trial court's grant of summary judgment to defendants. Cf.Padilla v. Utah Bd. of Pardons and Parole, 947 P.2d 664, 668 (Utah 1997) (declining to address issues raised in amended petition, dismissed by trial court on grounds that petitioner's concerns had already been resolved, because petitioner did not appeal trial court's order of dismissal).

To the extent that issues may have been raised by plaintiff's Second Amended Complaint that were not previously addressed by the trial court's 1990 Order, those issues are subject to dismissal for failure to prosecute with reasonable diligence.

Although the trial court did not specifically reference rule 41(b) of the Utah Rules of Civil Procedure, this court may affirm a grant of summary judgment on any ground available to the trial court, even if it is one not relied upon below. See Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993). In accordance with this court's decision in Country Meadows Convalescent Center v. Department of Health, "a trial court has discretion to dismiss a case under Rule 41(b) when a party neglects to prosecute 'without justifiable excuse.'" 851 P.2d 1212, 1215 (Utah Ct. App. 1993) (quoting Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975)). "Rule 41(b) requires plaintiffs to '"prosecute their claims with due diligence, or accept the penalty of dismissal."'" Id. (citations omitted). "[E]ven where a trial court finds facts indicating that 'injustice could result from the dismissal of [a] case,' it can dismiss when a plaintiff has 'had more than ample opportunity to prove his asserted interest and simply failed to do so.'" Id. at 1216 (quoting Maxfield v. Rushton, 779 P.2d 237, 240 (Utah Ct. App.), cert. denied, 789 P.2d 33 (Utah 1989)). At trial, when plaintiff was asked by the judge why the case had been allowed to sit for almost six years, counsel for plaintiff replied as follows: "I don't know why that happened. I was recently brought into the case and don't have an explanation for your honor." Here, plaintiff had almost six years within which to pursue his claims, if any, but failed to do so, treating the matter "with a silent reverence accorded that which is interred." See Brasher Motor & Finance Co. v. Brown, 23 Utah 2d 247, 461 P.2d 464, 464 (Utah 1969).

We note that "'[i]f Rule 41(b), Utah Rules of Civil Procedure, is to be effective in expediting and resolving litigation, it must require litigants to prosecute their claims with due diligence.'" Country Meadows, 857 P.2d at 1215 (citation omitted); see also Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998) (holding that dismissal is appropriate in "'extreme circumstances' of 'unreasonable delay'"); Taylor v. State Highway Comm'n, 173 N.W.2d 707, 711 (Wis. 1970) (stating that "a plaintiff is under obligation to bring his action to trial within a reasonable time, with dismissal the indicated penalty for the suitor who sleeps away his or her day in court"). The length of inaction in this case "'is inexcusable, not only from the standpoint of the parties, but also because it constitutes abuse of the judicial process.'" Country Meadows, 851 P.2d at 1215 (quoting Maxfield, 779 P.2d at 240-41).

Because the issues raised in plaintiff's Second Amended Complaint were previously disposed of by the trial court's 1990 Order, we affirm the trial court's grant of summary judgment to defendants. To the extent new issues were properly raised by plaintiff's Second Amended Complaint, we hold that well over five years of inaction by the plaintiff constitutes unreasonable delay and, under the provisions of Rule 41(b) of the Utah Rules of Civil Procedure, affirm the trial court's Order granting summary judgment for defendants based on plaintiff's failure to prosecute.
 
 

______________________________
James Z. Davis, Judge

-----

WE CONCUR:
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Norman H. Jackson, Judge