Boston v. Buchanan, No. 96,470.

CourtSupreme Court of Oklahoma
Writing for the CourtSUMMERS, J.
Citation2003 OK 114,89 P.3d 1034
PartiesMelba C. BOSTON and Glen C. Boston, Plaintiffs/Appellants, v. Robert T. BUCHANAN, M.D., and Chester W. Beam, M.D. Individuals; Plastic and Reconstructive Institute; and Saint Anthony Hospital, Oklahoma City, Oklahoma, Defendants/Appellees.
Docket NumberNo. 96,470.
Decision Date23 December 2003

89 P.3d 1034
2003 OK 114

Melba C. BOSTON and Glen C. Boston, Plaintiffs/Appellants,
v.
Robert T. BUCHANAN, M.D., and Chester W. Beam, M.D. Individuals; Plastic and Reconstructive Institute; and Saint Anthony Hospital, Oklahoma City, Oklahoma, Defendants/Appellees

No. 96,470.

Supreme Court of Oklahoma.

December 23, 2003.

Rehearing Denied April 20, 2004.


89 P.3d 1037
Michael H. Brady and Ronald A. Schaulat, Oklahoma City, OK, for Plaintiffs/Appellants

Michael J. Heron, Nathan A. Lockhart, Oklahoma City, OK, for Defendant/Appellee, St. Anthony Hospital.

J. Roger Hurt, Oklahoma City, OK, for Defendants/Appellees, Robert T. Buchanan, M.D., Chester W. Beam, M.D., and Plastic and Reconstructive Institute.

SUMMERS, J.

¶ 1 This case involves a trial court's dismissal of an action based upon its determination that the action was not diligently prosecuted by Plaintiffs. The primary issue on certiorari is the difference between dismissing an action pursuant to 12 O.S.2001 § 1083, and dismissing an action in the exercise of a trial court's inherent power as set forth in the first two sentences of Rule 9(b) of the Rules for District Courts. The trial court used both the statute and the Rule as authority for dismissing the action. Because § 1083 does not apply in this case, and because the trial court erroneously used the § 1083 criteria in applying its inherent power1 in Rule 9(b), we reverse the judgment of the District Court, and vacate the appellate opinion that affirmed that judgment.

¶ 2 A husband and wife brought a medical malpractice action in the District Court of Oklahoma County in 1995, and some discovery occurred. In November 1997 the action was dismissed because of Plaintiffs' failure to diligently prosecute the action. Plaintiffs refiled their action in October 1998, and service of process occurred in April 1999. Defendants filed answers in April and May 1999. Interrogatories and requests for production of documents were sent to Plaintiffs in May 1999. Plaintiffs responded in July 1999.

¶ 3 Then on April 3, 2001 the trial court mailed to the parties a notice of intent to dismiss the case "pursuant to Rule 9 of the Rules for District Courts for failure to diligently prosecute this action, as the last action of record in this case occurred on the 15th day of July, 1999." The notice scheduled a hearing for the matter in May 2001. Plaintiffs' attorney filed a motion to enter the cause on a jury docket. Defendants objected to the motion to enter the cause on a jury docket, because there had been "almost two (2) years inactivity in this case", and because the last activity had been plaintiffs responses to Defendants' discovery requests in 1999.

¶ 4 The District Court's order states that the case came on for hearing on the court's Disposition Docket, and that notice was mailed to the parties. The Court then found that the case should be dismissed for failure to diligently prosecute pursuant to Rule 9(b),

89 P.3d 1038
Rules of the District Courts and/or 12 O.S. 2001 § 1083, "whichever is applicable." We first address § 1083

¶ 5 Section 1083 states as follows:

§ 1083. Actions not at issue and in which no pleadings filed for 1 year—Dismissal
Any action which is not at issue and in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year shall be dismissed without prejudice by the court on its own motion after notice to the parties or their attorneys of record; providing, the court may upon written application and for good cause shown, by order in writing allow the action to remain upon its docket.

12 O.S.2001 § 1083, (emphasis added).

Plaintiffs argue that the case was "at issue" and not subject to dismissal pursuant to § 1083. We agree.

¶ 6 In Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, we said that: "A case is at issue for trial setting purposes when the issues are made up or when the defendant has failed to plead within the time allowed by law or by an order of the court." Id. 780 P.2d at 682, citing, 12 O.S.1981 § 6662 and Cunningham v. Cunningham, 1977 OK 203, 571 P.2d 839, 841. Issues that are "made up" consist of facts or conclusions of law presented by one party's pleadings, and controverted by the other party's pleadings. 12 O.S.2001 §§ 551, 552.3 A similar rule is expressed by a Montana court thusly,

It is true that in certain circumstances under our system of pleading, when the answer is filed no further pleadings are necessary, and clearly in such a case it would be at issue on the filing of an answer. In the case of Roush v. Chester it appears that the answer contains certain affirmative defenses or new matter to which the plaintiff has replied. When the parties to a suit have filed all their pleadings and pleading has ended, the case is at issue. Andrew Stephens on Pleading (2d Ed.) 147; 2 Cooley's Blackstone, 1091; Black's Law Dictionary, 657; Dickerson v. Stoll, 24 N.J.Law, 550 [(1854)].

Roush v. District Court of Eighth Judicial Dist. for Cascade County, 101 Mont. 166, 53 P.2d 96, 97-98 (1935).

¶ 7 We hold that a case is at issue when issues are made up, or when the defendant has failed to plead within the time allowed by law or by an order of the court. Davidson v. Gregory, supra. This will most often occur when an answer is filed and no further pleadings are necessary. Section 1083 clearly limits the scope of its application to an action which is not at issue. In the matter before us today answers were filed and no further pleading occurred. The action was at issue, and § 1083 does not apply.

¶ 8 The District Court cited Rule 9(b) of the Rules for the District Courts as alternative authority for dismissing the action. Rule 9 states in pertinent part as follows:

Diligence in prosecution
b. Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S.1981 § 1083.

12 O. S.2001 Ch. 2, App, Rules for District Courts, Rule 9.

89 P.3d 1039
Rule 9(b) does not expressly limit its application to cases at issue, and Defendants argue that the dismissal can stand on the authority of Rule 9 alone. The legal issue presented by this argument is whether § 1083 limits the scope of Rule 9(b)

¶ 9 Rule 9(b) was created by an Order of this Court in 1961, and provided for dismissal of an action because of a plaintiff's lack of diligence in prosecuting the action. 12 O.S. 1961 Ch. 2, App.4 Section 1083 was enacted approximately four years later in 1965. 12 O.S.Supp.1965 § 1083. Since Rule 9(b) was created prior to § 1083 it is obvious that the Rule was not originally created to implement § 1083. The Rules for District Courts were substantially modified in 1973, but Rule 9 was not changed from its 1961 version. 12 O.S.Supp.1973 Ch. 2., App. Then in 1981 the Rules were again revised and Rule 9 was amended to its present form. 12 O.S.1981 Ch. 2, App.

¶ 10 The first two sentences of Rule 9(b) state that a district court may dismiss an action, and they do not refer to cases not being at issue, nor a one-year period of inactivity. The last sentence of Rule 9(b) refers to a period of inactivity for one-year and dismissal of a case pursuant to § 1083. May a court dismiss a case that meets the criteria of the first two sentences of Rule 9(b), but does not satisfy the criteria of the last sentence applying § 1083? We have indicated at different times that Rule 9(b) was limited or was not limited by § 1083, and we now resolve this conflict.

¶ 11 After Rule 9 was amended in 1981 we were presented with the situation whether the first two sentences of Rule 9(b) acted as authority independent of § 1083. In Matter of Estate of Goyne, 1986 OK 69, 733 P.2d 391, the trial court issued an order setting a "motion to vacate hearing on agreement and the next filing in the case." Id. 733 P.2d at 395. Twenty-two months elapsed without an additional filing and the trial court declined to dismiss.

¶ 12 Our analysis in Goyne included reasoning that Rule 9(b) was based upon § 1083, and that § 1083 would not support dismissing an action when a motion remained pending for adjudication. Id. 733 P.2d at 395. We affirmed the order declining to dismiss the action, saying that "In this case the motion to vacate remained pending during the two year period and was not subject to dismissal pursuant to Rule 9." Id. 733 P.2d at 395, emphasis added. Thus, if Rule 9(b) was based upon § 1083 and § 1083 would not work as authority for dismissal, Rule 9(b) would also be insufficient authority for a dismissal.

¶ 13 Then in B & M International Trading Co. v. Woodie Ayers Chevrolet, Inc., 1988 OK 133, 765 P.2d 782, we affirmed a dismissal pursuant to Rule 9(b). We noted that motions remained pending and that § 1083 did not apply. However, instead of linking application of Rule 9(b) to the circumstances mentioned in § 1083, as we did in Estate of Goyne, we affirmed the dismissal by separating the application of Rule 9 from § 1083. We said:

Section 1083 directs the court to dismiss without prejudice any action "which is not at issue and in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year ..." Since the record here reflects that all of defendant's demurrers, motions to make more definite and certain, and motions to compel more complete answers to interrogatories were pending at the time of the trial court's dismissal, section 1083 does not apply, and the court must exercise its discretion to dismiss under Rule 9(b). Dismissal under that Rule must be without prejudice.
Finding no authority upon which the trial court could dismiss the present action with
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28 practice notes
  • Warren v. Stanfield (In re Stanfield), No. 107,292.
    • United States
    • Supreme Court of Oklahoma
    • February 7, 2012
    ...or conclusions of law that are presented by one party's pleadings and controverted by the other party's pleadings, Boston v. Buchanan, 2003 OK 114, ¶ 6, 89 P.3d 1034, 1038; the issues are memorialized by a pretrial order which may also supersede the pleadings, 12 O.S.2011 Ch. 2, App., Dist.......
  • Collier v. Reese, No. 106,817.
    • United States
    • Supreme Court of Oklahoma
    • November 17, 2009
    ...This case garnered so much publicity that the story was developed into a television series and a movie. 24. See Boston v. Buchanan, M.D., 2003 OK 114, ¶ 1 fn. 1, 89 P.3d 1034; State v. Martin, 1927 OK 147, ¶ 5, 256 P. 25. The United States Supreme Court in Gentile v. State Bar of Nevada, 50......
  • Wynn v. State, No. 115
    • United States
    • Court of Appeals of Maryland
    • August 11, 2005
    ...State v. Honeycutt, 96 S.W.3d 85, 89 (Mo.2003); Gonzales v. Surgidev Corp., 120 N.M. 151, 899 P.2d 594, 598 (1995); Boston v. Buchanan, 89 P.3d 1034, 1044 n. 9 (Ok.2003). The reason for this widespread recognition is clear: courts could not function without the ability to control their dock......
  • Taliaferro v. Shahsavari, No. 102,225.
    • United States
    • Supreme Court of Oklahoma
    • December 19, 2006
    ...Const. art. 2, § 19 provides in pertinent part: "The right to trial by jury shall remain inviolate...." 40. See also, Boston v. Buchanan, 2003 OK 114, ¶ 1, Fn. 1, 89 P.3d 41. In the words of Michel Eyquem de Montaigne, "Men by various Ways arrive at the same End." Michel de Montaigne, The C......
  • Request a trial to view additional results
28 cases
  • Warren v. Stanfield (In re Stanfield), No. 107,292.
    • United States
    • Supreme Court of Oklahoma
    • February 7, 2012
    ...or conclusions of law that are presented by one party's pleadings and controverted by the other party's pleadings, Boston v. Buchanan, 2003 OK 114, ¶ 6, 89 P.3d 1034, 1038; the issues are memorialized by a pretrial order which may also supersede the pleadings, 12 O.S.2011 Ch. 2, App., Dist.......
  • Collier v. Reese, No. 106,817.
    • United States
    • Supreme Court of Oklahoma
    • November 17, 2009
    ...This case garnered so much publicity that the story was developed into a television series and a movie. 24. See Boston v. Buchanan, M.D., 2003 OK 114, ¶ 1 fn. 1, 89 P.3d 1034; State v. Martin, 1927 OK 147, ¶ 5, 256 P. 25. The United States Supreme Court in Gentile v. State Bar of Nevada, 50......
  • Wynn v. State, No. 115
    • United States
    • Court of Appeals of Maryland
    • August 11, 2005
    ...State v. Honeycutt, 96 S.W.3d 85, 89 (Mo.2003); Gonzales v. Surgidev Corp., 120 N.M. 151, 899 P.2d 594, 598 (1995); Boston v. Buchanan, 89 P.3d 1034, 1044 n. 9 (Ok.2003). The reason for this widespread recognition is clear: courts could not function without the ability to control their dock......
  • Taliaferro v. Shahsavari, No. 102,225.
    • United States
    • Supreme Court of Oklahoma
    • December 19, 2006
    ...Const. art. 2, § 19 provides in pertinent part: "The right to trial by jury shall remain inviolate...." 40. See also, Boston v. Buchanan, 2003 OK 114, ¶ 1, Fn. 1, 89 P.3d 41. In the words of Michel Eyquem de Montaigne, "Men by various Ways arrive at the same End." Michel de Montaigne, The C......
  • Request a trial to view additional results

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