Peterson v. Sunrider

Peterson v. Sunrider

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Janet Peterson,

Plaintiff and Appellant,

v.

Sunrider Corp. dba Sunrider International, and Tei-Fu Chen,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040116-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 353

 

-----

Fourth District, Provo Department

The Honorable Claudia Laycock

Attorneys: Thomas W. Seiler and Ryan T. Peel, Provo, for Appellant

H. Thomas Stevenson and Brad C. Smith, Ogden, for Appellees

-----

Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Janet Peterson appeals the trial court's dismissal of her claim against Sunrider Corporation (Sunrider) for failure to prosecute.

    In reviewing a trial court's dismissal of an action for failure to prosecute, appellate courts will "not disturb [a trial court's] decision absent an abuse of discretion and a likelihood that an injustice has occurred." Hartford Leasing Corp. v. State, 888 P.2d 694, 697 (Utah Ct. App. 1994). Furthermore, the "party challenging the dismissal bears the burden of offering a reasonable excuse for [his or her] lack of diligence." Rohan v. Boseman, 2002 UT App 109,¶28, 46 P.3d 753 (alteration in original)(quotations and citation omitted).

    Where appropriate, courts may consider factors in addition to the elapse of time since the action was filed. Five factors often considered are: the conduct of the parties; the opportunity each party has had to move the case forward; what each party has done to move the case forward; what prejudice or difficulty may be caused to the other side; and "most important, whether injustice may result from the dismissal." Id. However, even where a trial court determines that dismissal may result in an injustice, the trial court may dismiss the action "when a plaintiff has had more than ample opportunity to prove his or her asserted interest and simply failed to do so." Id. (quotations and citation omitted).

    Peterson asserts the trial court abused its discretion in dismissing her claim because Sunrider had an outstanding counterclaim and was thus equally obligated to move the case along. Her factual premise, however, is incorrect. The trial court dismissed the counterclaim in 2000 so Peterson could pursue her appeal on a final order. As a result, the burden to move the case forward falls squarely on Peterson as plaintiff.

    Peterson, as the initiating party, has the primary responsibility to move the case forward. See Hartford Leasing Corp., 888 P.2d at 698 n.2. "The defendant's responsibility is limited to responding timely to the action, expeditiously attending to discovery, and moving any counterclaim along." Id. In considering the factors to determine whether dismissal is appropriate, "what each party has done to move the case forward can only be evaluated in light of each party's responsibility concerning the case." Id.

    Sunrider, as defendant, was not obligated to do anything to move the case along after its counterclaim was dismissed. Peterson argues that Sunrider should have written letters to Peterson's counsel inquiring regarding the status of her amended complaint, or the status of discovery, or the status of a scheduling conference between the parties. However, the "defendant has no general responsibility to move plaintiff's action to judgment." Id. It was Peterson's obligation to diligently pursue her claim. A plaintiff must prosecute his or her claims with due diligence "or accept the penalty of dismissal." Charlie Brown Constr. Co. v. Leisure Sports Inc., 740 P.2d 1368, 1370 (Utah Ct. App. 1987).

    In her reply brief, Peterson acknowledges that there is no outstanding counterclaim, but asserts the trial court erred because she had diligently pursued her claim and that extensive discovery was taken. However, the activities she relies upon to show her pursuit of her claim occurred more than six years ago. In the scheduling conference, Peterson acknowledged that much of the discovery was "stale," and thus the matter required additional, updated discovery. Peterson noted that the additional discovery could likely be completed by the end of 2002. However, not only was discovery not completed, it was not begun by the end of 2002. Peterson did not pursue her claim in any way after remand to the trial court. It was even Sunrider that requested the scheduling conference.

    Peterson also argues that an injustice would be served by the dismissal. Even if true, however, injustice alone will not save a dilatory plaintiff. Dismissal may be appropriate even where injustice could result if a plaintiff "has had more than ample opportunity to prove [her] asserted interest and simply failed to do so." Rohan, 2002 UT App 109 at ¶28. As the challenger to the dismissal, Peterson "bears the burden of offering a reasonable excuse for her lack of diligence." Id. Peterson does not offer any excuse or explanation for her failure to proceed with her case for more than a year. It is apparent that Peterson "had ample opportunity to litigate [her] case . . . but abused such opportunity." Id. at ¶32.

    In sum, Peterson bore the burden of moving the case forward, had ample opportunity to do so, and has provided no excuse for her dilatory conduct. She has not shown that the trial court abused its discretion in dismissing her case for failure to prosecute.

    Sunrider requests attorney fees on appeal pursuant to rules 40 and 33 of the Utah Rules of Appellate Procedure. Rule 40 provides that, by signing a brief, an attorney or party certifies "that to the best of his or her knowledge, information, and belief, formed after reasonable inquiry, [the brief] is not frivolous . . . as defined in Rule 33." Utah R. App. P. 40(a). Rule 33 defines a frivolous brief as one "that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law." Utah R. App. P. 33(b). Rule 33 further provides for attorney fees on appeal if an appeal is found to be frivolous. See Utah R. App. P. 33(a).

    Peterson's primary argument upon which she brought her appeal was based on an obvious factual error. Sunrider's counterclaim was no longer pending, nor had it been since the trial court's order in March of 2000, almost four years before this appeal was filed. This fact was easily available for confirmation in the record. Furthermore, Peterson should have been highly aware of the dismissal of the counterclaim because it permitted her prior appeal to move forward from a final order. As a result of Peterson's misstatement of an obvious fact, Peterson's opening appeal brief was without a reasonable factual basis and indicated a lack of reasonable inquiry into the facts and circumstances of the case.

    Although Peterson argues in her reply brief that her argument is well grounded even without the counterclaim, the counterclaim was the basis for her opening brief, the only brief to which Sunrider gets to respond. Thus, conceding that there was no counterclaim does not make her opening brief any less frivolous. Therefore, pursuant to rules 33 and 40 of the Utah Rules of Appellate Procedure, Sunrider is awarded its attorney fees incurred in this appeal.

    The dismissal of Peterson's complaint is affirmed. This matter is remanded to the trial court for a determination of Sunrider's reasonable attorney fees incurred on appeal.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge