Winward v. Carlos

Winward v. Carlos

IN THE UTAH COURT OF APPEALS

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Kirk Winward,

Plaintiff and Appellant,

v.

Wayne M. Carlos, John Kent Draayer, and Shelly Denis Carlos,
individuals dba AAA Bonding;
Jeff Lewis, an individual; Placers Sports, Inc. dba AAA Bail Bonds;
and Five (5) John Does,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021042-CA
 

F I L E D
(December 4, 2003)
 

2003 UT App 418

 

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Second District, Farmington Department

The Honorable Michael G. Allphin

Attorneys: Budge W. Call, Salt Lake City, for Appellant

Christopher L. Shaw and Ronald K. Nichols, Ogden, for Appellees

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Before Judges Billings, Bench, and Thorne.

BILLINGS, Associate Presiding Judge:

Kirk Winward (Plaintiff) appeals the trial court's order dismissing his case for failure to cooperate in discovery and failure to prosecute.(1) Plaintiff argues the trial court abused its discretion in that discovery was ongoing and motions were pending when his case was dismissed.(2) "In reviewing a trial court's decision to dismiss for failure to prosecute, we accord the trial court broad discretion and do not disturb its decision absent an abuse of discretion and a likelihood that an injustice occurred." Hartford Leasing Corp. v. State, 888 P.2d 694, 697 (Utah Ct. App. 1994).

Rule 41(b) of the Utah Rules of Civil Procedure provides: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him." Utah R. Civ. P. 41(b). Thus, "a trial court has the discretion to dismiss an action with prejudice for failure to prosecute without justifiable excuse." Rohan v. Boseman, 2002 UT App 109,¶28, 46 P.3d 753.

To determine whether the trial court abused its discretion in dismissing Plaintiff's case for failure to prosecute, we look to factors beyond the length of time since the complaint was filed, see Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975), and consider the following Westinghouse factors:

"(1) The conduct of both parties; (2) the opportunity each party has had to move the case forward; (3) what each of the parties has done to move the case forward; (4) what difficulty or prejudice may have been caused to the other side; and (5) most important, whether injustice may result from the dismissal."

Rohan, 2002 UT App 109 at ¶28 (citation omitted); see Westinghouse, 544 P.2d at 879. Additionally, we consider the "totality of the circumstances" to determine "[w]hether delay is a ground for the dismissal of an action." Hartford Leasing Corp., 888 P.2d at 698 (alteration in original) (quotations and citation omitted).

In applying the above factors to Plaintiff's case, we conclude the trial court did not abuse its discretion in dismissing Plaintiff's case for failure to prosecute. "Plaintiff[ is] required 'to prosecute [his] claims with due diligence, or accept the penalty of dismissal.'" Charlie Brown Constr. Co., Inc. v. Leisure Sports Inc., 740 P.2d 1368, 1370 (Utah Ct. App. 1987) (quoting Maxfield v. Fishler, 538 P.2d 1323, 1325 (Utah 1975)). In general, a defendant has no "responsibility to move plaintiff's action to judgment," and a "defendant's responsibility is limited to responding timely to the action, expeditiously attending to discovery, and moving any counterclaim along." Hartford Leasing Corp., 888 P.2d at 698 n.2. Thus, it is Plaintiff's responsibility to move his case forward, not Defendants'.

On November 25, 2002, three years after Plaintiff filed his original complaint, the court issued its Findings of Fact and Order of Dismissal. The court found Plaintiff failed to diligently prosecute his case and cooperate in the discovery process. In particular, the court found: (1) Plaintiff did not provide an accurate medical history in preparation of a Utah Rule of Civil Procedure 35 medical evaluation; (2) Plaintiff failed to adequately respond to Defendants' requested discovery; (3) the physician named by Plaintiff as a treating expert witness did not appear in the record of treatment; (4) Plaintiff failed to provide in his responses to discovery the specific subject matter or substance of facts or opinions upon which Plaintiff's medical experts were expected to testify; and (5) Plaintiff failed to provide a signed release form allowing Defendants to obtain a complete medical history from the prison.

Plaintiff has not adequately challenged the findings of the trial court and thus we accept them for purposes of our analysis. See Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998) ("To successfully challenge a trial court's findings of fact on appeal, '[a]n appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be "against the clear weight of the evidence," thus making them "clearly erroneous."'" (alteration in original) (citations omitted)).

Plaintiff never provided the proper medical records from the prison or the complete information regarding Plaintiff's expert witnesses. Defendants made numerous attempts to obtain discovery regarding Plaintiff's expert witnesses and medical records in order to conduct a meaningful independent medical evaluation and take depositions of Plaintiff's medical experts. The trial court held six status conferences to attempt to move the case toward trial. However, as the trial court found, Plaintiff's failure to fully cooperate in discovery rendered it impossible. Defendants originally requested information regarding Plaintiff's medical records and medical experts in their First Set of Interrogatories and Request for Production of Documents on November 8, 2000. Plaintiff never properly responded.

Additionally, Plaintiff did not respond to Defendants' request that Plaintiff sign a release so Defendants could obtain Plaintiff's criminal and medical records from the prison. As the trial court found, Defendants forwarded to Plaintiff a request for a release, which was never signed and provided to Defendants.

Based on the foregoing and the trial court's broad discretion in this area, we conclude the trial court did not abuse its discretion in finding Plaintiff failed to prosecute his
case, and thus the trial court properly dismissed Plaintiff's case. We affirm.

______________________________

Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge

1. Plaintiff also argues the trial court erred in denying the jury demand contained in the second amended complaint. Because we affirm on the ground that Plaintiff failed to prosecute his case, the jury demand issue is moot.

2. Although the trial court dismissed Plaintiff's case on the alternative grounds of failure to prosecute under Utah Rule of Civil Procedure 41(b) and failure to cooperate in discovery under Utah Rule of Civil Procedure 37, we choose to affirm only on the failure to prosecute grounds. Defendants never filed a motion to compel and the trial judge made no orders warning Plaintiff's counsel of penalties that would be imposed for failure to respond to discovery.