Jensen v. Doherty ( 1981 )

McFADDEN, Justice.

Appellant Jensen instituted this action in 1975 seeking to establish an easement interest in a parking area adjacent to his place of business in order that his customers could continue to park there. The area was owned at that time by the respondent, who also owned and operated a neighboring business. After the respondent answered the complaint and filed a counterclaim, a pretrial conference was held.¹ The court suggested that some of the issues raised might well be resolved by way of partial summary judgment. One year later the appellant moved for partial summary judgment on the question of his right to use and have his customers use the parking area. Hearing was held on the motion for partial summary judgment four days before the scheduled trial date. After argument, the court stated that, while unsure of the exact nature of appellant’s claimed interest or how to label it, the court was convinced at that point there was no easement shown by the appellant, and that therefore the motion for partial summary judgment would be denied. The court then discussed with counsel the pending trial. During this discussion, respondent offered a monetary settlement, and it was decided that appellant would advise the court and opposing counsel if trial would not proceed due to the acceptance of the proferred settlement or. for other reasons.

On the scheduled date, the parties appeared for trial, at which time the appellant informed the court that it was not prepared to proceed with proof. Respondent moved for and was granted an involuntary dismissal of appellant’s claim under I.R.C.P. 41(b) for want of prosecution. Respondent then voluntarily dismissed his counterclaim.

The court filed two separate orders, one of which denied the motion of the appellant for partial summary judgment as per the hearing and ruling prior to trial. The other order dismissed the complaint of the appellant pursuant to the decision under I.R.C.P. 41(b). Judgment was later entered awarding costs and fees to the respondent as well as dismissing appellant’s claim with prejudice.

Argument before this court indicates that while appellant appealed from the judgment dismissing the action as well as one of the orders (which order is unspecified), relief on this appeal is sought only from the trial court’s refusal to grant partial summary judgment. No argument is made by appellant in regard to the court’s involuntary dismissal of the action.

Involuntary dismissal under I.R.C.P. 41(b) for failure to prosecute is in the nature of a sanction. It is a necessary final recourse available to the court to protect its processes and other litigants from abuse. It is a remedy to be sparingly used, but it is always available. See, e. g., 9 Wright & Miller, Federal Practice and Procedure, Civil § 2370 (1971).

We have held that the granting of an involuntary dismissal on this ground is an act within the sound discretion of the trial court, and that imposition of the sanction will stand absent abuse of that discretion. Kirkham v. 4.60 Acres, 100 Idaho 781, 783, 605 P.2d 959 (1980); Warden v. Lathan, 96 Idaho 34, 35, 524 P.2d 162 (1974). We find no such abuse of discretion apparent upon the record before us.

In addition, it must be noted that the appellant has here failed to comply with a number of provisions of the Idaho Appellate Rules governing presentation of appeals to this court. For example, the appellant’s brief fails to set forth either the facts involved in this case or the proceedings had below. The brief also fails to denominate any issues on appeal. See I.A.R. 35. And, appellant fails to provide a sufficient record or any argument concerning the propriety of the involuntary dismissal of his action. Absent compliance with the appellate rules, the court will not review the record for error. Error is never presumed on appeal; the burden of showing it is. upon the party alleging it. Woods v. Crouse, 101 Idaho 764, 620 P.2d 798 (1980); Dawson v. Mead, 98 Idaho 1, 3, 557 P.2d 595 (1976); Clear v. Marvin, 86 Idaho 87, 92, 383 P.2d 346 (1963). Failure to follow the established rules of this court, in conjunction with the other actions of the appellant, supra, justifies an award of attorney fees on appeal. I.A.R. 41; I.C. § 12-121; Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).

The order of involuntary dismissal is affirmed. Costs and attorney fees to respondent. "

DONALDSON and SHEPARD, JJ., and SCOGGIN, J. Pro Tern, concur.

1 . Appellant was also granted a temporary injunction which allowed him and his customers to park in the area pending resolution of the action.