Horrocks v. Morgan

Horrocks v. Morgan

IN THE UTAH COURT OF APPEALS

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Howard R. Horrocks, Faye G. Horrocks, et al.,

Plaintiffs and Appellants,

v.

Robert L. Morgan, State Engineer of the State of Utah; and Roosevelt City Corporation,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020934-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 52

 

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Eighth District, Duchesne Department

The Honorable John R. Anderson

Attorneys: Dale M. Dorius, Jennifer D. Reyes, and Justin C. Bond, Brigham City, for Appellants

Mark L. Shurtleff, Norman K. Johnson, and Julie I. Valdes, Salt Lake City, and Clark B. Allred and Clark A. McClellan, Vernal, for Appellees

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Before Judges Bench, Greenwood, and Orme.

BENCH, Associate Presiding Judge:

The language from section 73-3-15 of the Utah Code, directing the court to dismiss for "failure to prosecute a suit to final judgment within two years," is mandatory. Utah Code Ann. § 73-3-15(2)(a) (Supp. 2003); see also Provo City v. Hansen, 601 P.2d 141, 143 (Utah 1978) ("[I]f over two years have elapsed since the filing of the action, a plaintiff has failed to prosecute with diligence as a matter of law and the court must dismiss the action. This court has clearly ruled upon the mandatory nature of this provision."); Dansie v. Lambert, 542 P.2d 742, 744 (Utah 1975) (upholding cases interpreting words used in section 73-3-15 as being mandatory, rather than discretionary). Plaintiffs filed their complaint on July 10, 2000. Two years elapsed, and the suit was not prosecuted to final judgment; therefore, the trial court properly granted Defendants' motion to dismiss.

Plaintiffs urge us to interpret the statute as permitting a court to refuse to dismiss "if the equities warrant it." Blake v. Hansen, 782 P.2d 472, 474 (Utah 1989). In Blake, the plaintiffs argued that the "trial court should have considered their efforts to diligently prosecute the case in deciding whether to dismiss the action, rather than relying exclusively on the length of time that had passed since the lawsuit was filed." Id. The Utah Supreme Court held that, even if the statute could be interpreted as being discretionary, the facts did not warrant the use of discretion. See id. The court found that the plaintiffs' counsel, their fourth attorney since the inception of the case, see id. at 473,

knew of the need to go to trial before the expiration of the two-year period . . . , knew that the trial date fixed by the trial court executive was too late, and yet did nothing to bring the matter to the attention of the trial judge, who certainly had the power to rearrange the trial calendar to accommodate the Blakes.

Id. at 474.(1) In the instant case, Plaintiffs never even requested a timely trial date.

In Provo City v. Hansen, 601 P.2d 141 (Utah 1978), the Utah Supreme Court held that, under section 73-3-15, a plaintiff is required to "take advantage of other remedies available to him

. . . where the opposing party attempts to purposefully delay the case." Id. at 143 n.3. Here, there is no evidence that Defendants attempted to "purposefully delay the case." Id.

Finally, assuming Plaintiffs preserved their challenge to the constitutionality of section 73-3-15, there is no dispute that Plaintiffs filed and pursued their claim in court. Requiring Plaintiffs to prosecute their suit "to final judgment within two years," Utah Code Ann. § 73-3-15(2)(a), does not result in a violation of article I, section 11 of the Utah Constitution. See Blake, 782 P.2d at 474.

"[I]t is clear that plaintiffs have failed to prosecute the suit to final judgment within two years after it was filed, and the dismissal was therefore proper." Hansen, 601 P.2d at 143. We affirm.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. In Blake, the plaintiffs claimed "that once they requested a timely trial date, they had done all that they could to comply with the statute; from that point on, the responsibility for seeing that the trial was held before the two-year cut-off was the district court's, a responsibility it failed to fulfill." Blake v. Hansen, 782 P.2d 472, 473-74 (Utah 1989). Subsequently, in finding "no unusual circumstances to warrant a result contrary to Blake," the Utah Supreme Court pointed to the fact that the plaintiff "did not file a notice of readiness for trial until eleven months after the case was filed." Jensen v. Morgan, 844 P.2d 287, 292 (Utah 1992). Here, Plaintiffs never filed a notice of readiness for trial within the two-year period.