Utah Oil Co. v. Harris

HALL, Justice:

This appeal arises out of the dismissal with prejudice of a suit for damages for the destruction of a right-of-way, the same having been filed March 20, 1974, followed by the filing of appropriate responsive pleadings, motions, discovery, and ultimate pretrial setting on September 12, 1974, at which time the pre-trial hearing was stricken by reason of a compromise settlement reached. Included in the order striking the pre-trial was the further provision that the matter was not to be rescheduled for trial without the filing of a new request therefor. On March 12, 1975, counsel for plaintiffs filed a notice of withdrawal and on April 28,1975, only defendant Harris filed a notice provided by statute¹ for plaintiffs to appoint a successor attorney or for plaintiffs to appear in person. Motion to dismiss for failure to diligently prosecute was filed July 12,1976, pursuant to court rule.² Said motion was heard on August 3, 1976, plaintiffs appearing in person and by present counsel and the court entered the order of dismissal complained of.

The sole question presented here is whether or not the trial court abused its discretion. Both parties rely principally upon the prior pronouncements of this court in Westinghouse Electric Supply v. Paul W. Larsen Contractor, Inc.³ which was cited with approval in Polk, et al. v. Ivers, et ux.,⁴ however, those cases are not fully disposi-tive since the facts are different in that the statutory provision in footnote 1 above, was not dealt with therein.

The statutory language in need of interpretation is as follows:

78-51-36. Notice to appoint successor. —When an attorney dies or is removed or suspended, or ceases to act as such, a party to an action or proceeding for whom he was acting as attorney must before any further proceedings are had against him be required by the adverse party, by written notice, to appoint another attorney or to appear in person.

The foregoing clearly appears to have been enacted to safeguard a litigant who finds himself without counsel and prevents further proceedings until he again has counsel or chooses to proceed pro se. It is not a court directive nor does it exact any penalty against the litigant who fails for one reason or another to engage new counsel since, by its own terms, it affords him the alternative of appearing in person. Consequently, when a litigant does fail to engage new counsel, that, in and of itself, is not an adequate basis to default him or to dismiss as against him with prejudice.

Looking now to the specific facts of this case, it is noted that from and after the date of said statutory notice to plaintiffs there were no “proceedings” of any kind brought by any of the parties to the lawsuit until defendant Harris filed his motion to dismiss for failure to diligently prosecute on the grounds of failure to engage new counsel and to take further action to move the case along during the intervening 16 months. At the time set for hearing on the motion plaintiff appeared in person and with counsel and thus complied with the notice by so appearing at the next proceeding.

Turning now to the issue as to whether or not a lapse of 16 months in prosecuting a claim for relief is sufficient to support a dismissal with prejudice, this court has been active in that area and has held that where all of the litigants had power to obtain relief and failed to do so, it is error to dismiss with prejudice.⁵ None of the defendants requested a re-setting of either a pre-trial conference or trial as was mandated by the court previously when the pre-trial was suspended by reason of settlement negotiations.

The Westinghou.se case, footnote 3 above, and the cases cited therein, have applicability to the matter of the court’s discretion in dismissing for failure to prosecute and the court observed as follows:

. it is indeed commendable to handle cases with dispatch and to move calendars with expedition in order to keep them up to date. But it is even more important to keep in mind that the very reason for the existence of courts is to afford disputants an opportunity to be heard and to do justice between them. In conformity with that principle the courts generally tend to favor granting relief from default judgment where there is any reasonable excuse, unless it will result in substantial prejudice or injustice to the adverse party.

It is our conclusion that the trial court failed to give proper weight to the higher priority; and that under the circumstances described herein, the order of dismissal (with prejudice) was an abuse of discretion.

The court at that time listed the following guidelines in determining justifiable excuses for dela,y.

1.The conduct of both parties.

2. The opportunity each has had to move the case forward.

3. What each of the parties have done to move the case forward.

4. What difficulty or prejudice may have been caused to the other side.

5. And, most important, whether injustice may result from the dismissal.

Applying the foregoing rules to the case at hand, it is obvious that plaintiffs’ lack of diligence in prosecuting over 16 months was reasonably excusable in light of the settlement efforts and had defendants been anxious to proceed they need only have taken such affirmative step themselves. Also, no prejudice to defendants’ position is evident while serious injustice may well exist as result of the dismissal.

Reversed and remanded for further proceedings. Costs to plaintiffs.

CROCKETT and WILKINS, JJ., concur. ELLETT, C. J., concurs in result. MAUGHAN, J., having disqualified himself, does not participate herein.

1 . Section 78-51-36, U.C.A.1953.

2 . Rule 41(b), U.R.C.P.

3 . Utah, 544 P.2d 876 (1975).

4 . Utah 561 P.2d 1075 (1977).

5 . Crystal Lime & Cement Co. v. Robbins, 8 Utah 2d 389, 335 P.2d 624 (1959).