Compass Development, Inc. v. Blevins

• Decision Date: 14 July 1994
• Docket Number: No. 16511,16511
• Citation: 876 P.2d 1335,10 Haw.App. 388
• Parties: COMPASS DEVELOPMENT, INC., a Hawaii, Inc., as Trustee of the Emes 1980 Irrevocable Trust, Defendants in Intervention-Appellees.
• Court: Hawaii Court of Appeals

Page 1335

876 P.2d 1335

10 Haw.App. 388

COMPASS DEVELOPMENT, INC., a Hawai[']i corporation; and The

Woods at [A]huimanu Limited Partnership, a Hawai'i

limited partnership, Plaintiffs-Appellants, v. Margaret A. BLEVINS, as Trustee of the Emes 1980 Irrevocable

Trust; American Trust Company of Hawai[']i, Inc.,

as Trustee of the Emes 1980 Irrevocable

Trust, Defendants-Appellees.

DAX CORPORATION, Plaintiff in Intervention-Appellee, v. COMPASS DEVELOPMENT, INC., a Hawai'i corporation; and The

Woods at [A]huimanu Limited Partnership, a Hawai'i limited

partnership, Defendants in Intervention-Appellants; and

Margaret A. Blevins, as Trustee of the Emes 1980 Irrevocable

Trust; American Trust Company of Hawai[']i, Inc., as

Trustee of the Emes 1980 Irrevocable Trust, Defendants in

Intervention-Appellees.

No. 16511.

Intermediate Court of Appeals of Hawai'i.

July 14, 1994.

Syllabus by the Court

1. The courts have inherent power to dismiss cases for want of prosecution.

2. Hawai'i Rules of Civil Procedure Rule 41(b) does not constitute a limitation on the inherent power of the court to sua sponte order dismissal of a case for want of prosecution.

3. While a court has inherent power to dismiss a case for want of prosecution, a dismissal of a complaint is such a severe sanction, that it should be used only in extreme circumstances when there is a clear record of delay or contumacious conduct and where lesser sanctions would not serve the interest of justice.

4. Where a court sua sponte issues an order of dismissal for want of prosecution, its action is reviewable on appeal for abuse of discretion.

5. Selection of a specific trial date for a case on the trial "ready calendar" is ultimately the court's responsibility under Rules of the Circuit Court of the State of Hawai'i Rule 13.

6. The failure of a plaintiff to institute selection of a trial date under Rules of the Circuit Court of the State of Hawai'i Rule 12(c) is a breach of the plaintiff's duty to proceed diligently.

7. Delay caused by a plaintiff's failure to file a document designating alternative trial dates or requesting a "trial setting conference" does not warrant the severe sanction of dismissal.

8. Where the parties have filed their pretrial statements, completed their required settlement conference, and had their case placed on a trial "ready calendar," the public policy in favor of deciding cases on their merits outweighs any delay resulting from the failure of a plaintiff to initiate selection of a specific date for trial.

Burt L. Snyder, on the brief, Honolulu, for plaintiffs-appellants/defendants in intervention-appellants.

Mark D. Bernstein (Mark D. Clement of McCorriston Miho & Miller, with him on the brief), Honolulu, for defendants-appellees/defendants in intervention-appellees.

James J. Bickerton of Bickerton Ramos-Saunders Dang & Bouslog, on the brief, Honolulu, for plaintiff in intervention-appellee.

Before HEEN, WATANABE and ACOBA, JJ.

ACOBA, Judge.

The primary issue presented is whether the circuit court exceeded its authority or abused its discretion when it sua sponte dismissed the complaint with prejudice for want of prosecution.

Plaintiffs below, Compass Development, Inc. (hereinafter Compass), the managing general partner of Woods at [A]huimanu Limited Partnership (hereinafter WALP), a Hawai'i limited partnership, and WALP filed a complaint on December 29, 1989 against Margaret A. Blevins, as Trustee of the Emes 1980 Irrevocable Trust, and American Trust Company of Hawai[']i, Inc., as Trustee of the Emes 1980 Irrevocable Trust (collectively hereinafter Blevins), in a dispute involving the sale of land by Blevins to WALP.

Intervenor DAX Corporation (hereinafter DAX), the other general partner of WALP, was allowed to intervene as a plaintiff to protect its interest in the action. ¹

On May 30, 1992, the clerk of the court filed an "Order of Dismissal (no activity)." The Order, signed by the court, stated in relevant part, "Court Records reflect last case activity (date) SEPTEMBER 18, 1991. Note: Cases dismissed with prejudice for want of prosecution can be reinstated by way of motion ... within ten days after receipt of the Order for good cause."

The Order was filed without prior notice to any party or a prior hearing. The parties assume, and we agree, that the dismissal was with prejudice for failure to prosecute the case. The record does not reflect that the Order was issued pursuant to any statute or rule.

On June 9, 1992, DAX filed a Motion to Set Aside the Order of Dismissal Filed May 30, 1992. Compass appeared at the hearing and argued the motion. The motion was heard and denied on August 12, 1992. The Order Denying Plaintiff in Intervention DAX Corporation's Motion to Set Aside Order of Dismissal Filed on June 9, 1992 was approved as to form by DAX and Compass and was filed on November 17, 1992. ²

On August 17, 1992, Compass filed a Motion for Rehearing of Motion to Set Aside Order of Dismissal Filed May 30, 1992 which DAX joined. The motion was essentially a motion for reconsideration but was probably not titled as a motion for reconsideration because the Order Denying Plaintiff in Intervention DAX Corporation's Motion to Set Aside Order of Dismissal Filed on June 9, 1992 had not yet been filed. This motion was heard and denied on September 2, 1992. The Order Denying Plaintiff Compass Development Inc.'s Motion for Rehearing of Motion to Set Aside Order Filed May 30, 1992, was filed on September 21, 1992.

On October 2, 1992, Compass filed its Notice of Appeal, appealing the Order of Dismissal, the Order Denying Plaintiff in Intervention DAX Corporation's Motion to Set Aside Order of Dismissal Filed on June 9, 1992, and the Order Denying Plaintiff Compass Development, Inc.'s Motion for Rehearing of Motion to Set Aside Order of Dismissal Filed May 30, 1992. On November 20, 1992, Compass filed an Amended Notice of Appeal. ³

Compass and DAX contend that the court had no authority to issue the Order of Dismissal. ⁴ But the court's inherent power to dismiss a case for want of prosecution cannot be seriously disputed.

The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion.... The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e.g., Id., at 451.

Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734, 737 (1962). We hold, therefore, that the courts have inherent power to dismiss cases for want of prosecution. ⁵ See Lim v. Harvis Constr. Inc., 65 Haw. 71, 73 n. 1, 647 P.2d 290, 291 n. 1 (1982).

Both Compass and DAX argue that Hawai'i Rules of Civil Procedure (HRCP) Rule 41(b) implies that involuntary dismissals with prejudice may only be initiated by a defendant's motion and may not be ordered sua sponte by the court. HRCP Rule 41(b) provides, in pertinent part, that "[f]or failure of the plaintiff to prosecute ... a defendant may move for dismissal of an action." HRCP Rule 41(b) is the same as Federal Rules of Civil Procedure (Fed.R.Civ.P.) Rule 41(b). Therefore, the interpretation of Fed.R.Civ.P. Rule 41(b) by the United States (U.S.) Supreme Court under similar circumstances is persuasive to us. Harada v. Burns, 50 Haw. 528, 532, 445 P.2d 376, 380 (1968), cert. denied, 393 U.S. 1106, 89 S.Ct. 912, 21 L.Ed.2d 801 (1969). Accord Ellis v. Crockett, 51 Haw. 45, 61, 451 P.2d 814, 824 (1969) (citing Harada ). In Link, a United States district court, sua sponte, dismissed a diversity negligence action after counsel did not appear at a pretrial conference. Reviewing the history of the case, the district court dismissed the "action 'for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action' ... in the 'exercise [of] its inherent power.' " Link, 370 U.S. at 629, 82 S.Ct. at 1388, 8 L.Ed.2d at 737 (citations omitted in original). The U.S. Supreme Court rejected the plaintiff's contention that Fed.R.Civ.P. Rule 41(b), by implication, "prohibits involuntary dismissals for failure of the plaintiff to prosecute except upon motion by the defendant." Link, 370 U.S. at 630, 82 S.Ct. at 1388, 8 L.Ed.2d at 738. It said:

We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule--which merely authorizes a motion by the defendant--nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an "inherent power," governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.

Link, 370 U.S. at 630-31, 82 S.Ct. at 1388-89, 8 L.Ed.2d at 738.

We adopt the reasoning of the U.S. Supreme Court, and hold that HRCP Rule 41(b) does not constitute a limitation on the inherent power of the court to sua sponte order dismissal of a case for want of prosecution.

Compass contends, however, that even if the trial court had inherent power to dismiss for want of prosecution, the Order must be set aside because no hearing was afforded it prior to the Order being filed. Compass relies on Lim v. Harvis Constr., Inc., 65 Haw. 71, 647 P.2d 290 (1982). There at footnote one, the Hawai'i Supreme Court said, "We think the circuit courts have inherent power to dismiss a case for want of prosecution but only where the parties have an opportunity to be heard prior to the dismissal." Lim, 65 Haw. at 73 n. 1, 647 P.2d at 291 n. 1. Clearly, an order of dismissal "without...