Newman v. Old West, Inc.

Gregory, Justice

(concurring in part; dissenting in part):

I concur in the majority opinion insofar as it affirms the lower court’s denial of continuances under Circuit Court Rules 27 and 81 and a voluntary nonsuit without prejudice. However, I would hold the administrative judge abused his discretion in dismissing the action with prejudice, an issue not addressed in the majority opinion.

Appellant moved for continuances, and then a voluntary nonsuit without prejudice. The administrative judge denied these, and ex mero motu, summarily dismissed the action with prejudice. In affirming, the majority finds no abuse of discretion in the denial of the motions for continuances and a voluntary nonsuit. I agree. The critical issue now is whether the administrative judge abused his discretion by summarily dismissing the action with prejudice after denying the motions. By its silence, the majority tacitly holds that he did not. I strongly disagree. Here, the granting of an involuntary nonsuit with prejudice was patently erroneous because it was not in response to the motions before him. A judge ought to limit his rulings to matters presented and not gratuitously grant relief neither sought nor appropriate.

After denying Newman’s motions, the administrative judge should have ordered the case to trial. Although at a disadvantage, appellant’s duty then was to proceed with the trial. If she failed to proceed, a dismissal with prejudice by the trial judge would have been proper.

I would reverse and remand for trial.