Coutts v. Crider, 47970

• Decision Date: 08 May 1976
• Docket Number: No. 47970,47970
• Citation: 219 Kan. 692,549 P.2d 1019
• Parties: W. H. COUNTTS, Jr., Appellant, v. Verna Darlene CRIDER, a/k/a Mrs. George B. Crider, a/k/a Verna DarleneMerryman, a/k/a Verna Darlene Haywood, a/k/a Verna Darlene Scimeca, Appellee.
• Court: Kansas Supreme Court

Page 1019

549 P.2d 1019

219 Kan. 692

W. H. COUNTTS, Jr., Appellant, v. Verna Darlene CRIDER, a/k/a Mrs. George B. Crider, a/k/a

Verna DarleneMerryman, a/k/a Verna Darlene

Haywood, a/k/a Verna Darlene Scimeca, Appellee.

No. 47970.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. Negotiations for settlement which have been abondoned long before a motion to dismiss for want of prosecution is filed, afford no sufficient reason for denying the motion.

2. When a court has pending before it a motion by the defendant to dismiss for want of prosecution, the fact that it receives evidence that goes to the merits of plaintiff's claim does not prevent the court from ruling favorably upon the motion to dismiss.

3. In an action to collect past due legal fees, where the plaintiff took no action for over six years to bring the case to trial, it is held that the trial court did not commit error in sustaining defendant's motion to dismiss for want of prosecution.

Morgan Metcalf, Coutts, Coutts & Metcalf, El Dorado, argued the cause and was on the brief for appellant.

Allyn M. McGinnis, McGinnis & McGinnis, El Dorado, argued the cause and was on the brief for appellee.

MILLER, Justice:

This is an appeal by W. H. Coutts, Jr., an attorney and a member of the Bar of this court, from an order of the trial court sustaining a motion to dismiss for want of prosecution. The sole issue is whether the court abused its discretion by sustaining the motion.

The facts are not in dispute. Plaintiff is an attorney in the general practice of law at El Dorado, Kansas. Defendant was his client. Plaintiff performed various legal services for her. He was not paid. He commenced this action by filing a petition in the District Court of Butler County on November 1, 1967. Her answer was timely filed by her attorney, L. J. Bond, on November 20, 1967. The amount sought was $1,251.73. The answer admitted an obligation of $300. Interrogatories were served by both parties, and answers were filed December 5, 1967 and March 7, 1968.

Nothing appears of record in the case from March, 1968 until a motion to dismiss for want of prosecution was filed by Allyn M. McGinnis as attorney for defendant on July 12, 1974. Plaintiff filed a notice of readiness for trial on July 30, 1974.

The defendant's motion to dismiss came on for hearing before the court on July 17, 1974. During the discussion between court and counsel; plaintiff stated that he declined to press the case for trial out of sentiment for the defendant. The court stated that the matter should have been disposed of long ago, but that it desired to hear evidence as to whether or not the defendant would be prejudiced because of the age of the case.

'The Court: I think the question, Mr. Coutts, is whether or not the defendant would be prejudiced because of the age of the case. It's not, at this point, a question of the validity of your claim.

'MR. COUTTS: I realize that, Your Honor, but by the same token, I haven't brought any evidence to the court other than myself. . . . Mr. Metcalf will handle the case when it's set down. . . . I am up here merely for the motion that was presented here for no reason other than a dismissal. Now I might say, Your Honor, there have (sic) been no settlement whatsoever on my part. . . .

'THE COURT: Well, it would appear to me the question is something that can be resolved at the time of trial by simply not ruling on the motion at this time, and reserving the ruling and determining, based on the evidence presented on both questions, both issues, first of all, at the time of trial, and after hearing testimony of the witnesses on both sides, I can determine the equities, and then if I do not rule favorably to the defendant on a motion at that time, then I still have the question to rule on the validity of the claim. . . .'

The matter came on for trial November 22, 1974. Plaintiff presented evidence on his petition but presented no evidence as to the reason for delay. Defendant called plaintiff as her witness, and he testified that the only discussions he had relating to settlement were with Mr. Crider and Mrs. Copeland. Mr. Crider, a former husband of defendant, came to plaintiff and attempted to settle the matter before suit was filed, and plaintiff is sure that he returned after suit was filed and stated that '. . . they were going to raise the money and settle this . . .' Mrs. Copeland, a sister of defendant, called plaintiff twice in 1973. Plaintiff recalls telling her that he couldn't talk to her since defendant was represented by counsel. Plaintiff filed a notice of lis pendens in Scott County in 1967 in order to protect himself. Mr. Coutts stated that he wasn't delaying for any reason except he thought the matter would be settled. Out of respect for the defendant he had no desire to push the case. He never talked to the defendant or to her counsel with reference to settlement. Mr. Copeland testified as to her two futile attempts to secure a settlement figure from plaintiff in 1973. She understood that plaintiff 'would look it up and get back to me on the phone. He would call me and let me know what he could do' but no settlement figure was forthcoming. Mrs. Copeland testified that defendant was in relatively good health until 1972 or 1973, when she was in the hospital.

The trial court took the matter under advisement, and on January 17, 1975, wrote counsel as follows:

'In the interest of time, I am submitting my decision to you in letter form. Briefly stated, this is an action for recovery of attorneys' fees for services rendered to the defendant over a period of time beginning sometime in 1957 until sometime in 1966. The plaintiff filed his petition herein in November, 1967.

'After the filing of the petition and the defendant's answer, there was virtually no activity in this file until July, 1974, at which time the defendant filed her motion requesting the court to dismiss the action for lack of prosecution. The court heard the argument on the motion on July 17, 1974, at which time, the plaintiff asked the court for an opportunity to present evidence to justify the lack of prosecution in the case. At that time, the court ordered the matter to be set down for trial for the purpose of hearing evidence on the motion to dismiss as well as evidence on the action in chief.

'Considering first the issue of lack of prosecution, the plaintiff in his brief and in the presentation of evidence, basically argues that the prosecution of this case was delayed primarily for the benefit of the defendant inasmuch as the plaintiff was under the impression that the defendant was, in fact, ill over much of this period of time; and for the further reason that plaintiff was somewhat hesitate (sic) to prosecute an action against his client of many years. Further in his brief, plaintiff seems to argue that the defendant also has the responsibility for prosecuting the action, and further, that the court has failed in its responsibility to see that the matter was concluded. It will be admitted on the part of the court that due to an erroneous filing of a Journal Entry in an unrelated case in this particular case file, this case was removed from the court's docket of pending cases. Consequently, it did not come to the court's attention until defendant filed her motion.

'However, the court feels that the reasons given by the plaintiff for delaying action in the prosecution of this case does not justify a delay of this length of time; and further, the court believes that the primary responsibility of prosecution of the case lies ultimately upon the plaintiff absent any dilatory actions taken by the defendant to deliberately prolong the case or inaction by the court.

'It has been the practice of this court to make every effort to keep the cases moving toward judgment or dismissal, and to keep its docket current; and I believe that the attorneys, as members of the bar and of the court, should share in this responsibility. Therefore, it is my opinion that the defendant's motion to dismiss this case for lack of prosecution should be granted. For this reason a consideration of the evidence with respect to the claim is moot, and the defendant's attorney is directed to prepare a Journal Entry in keeping with this letter opinion.'

Following the overruling of his motion for a new trial, plaintiff perfected this appeal.

Plaintiff contends that the trial court committed reversible error and abused its discretion in sustaining defendant's motion to dismiss and in overruling his motion for new trial for the following reasons: (1) that the defendant caused delay in the prosecution by engaging in negotiation and attempts at settlement; (2) that the court caused delay in prosecution in failing to list this action on regular docket calls because of a clerical error and in failing to notify the plaintiff that the case should be tried by a certain date or be dismissed; (3) that the court, having heard the substantive issues involved in the appeal, should have ruled on the merits rather than on the motion; (4) that the defendant presented no defense to the plaintiff's claim; (5) that the defendant presented no evidence that the delay in any way prejudiced her; (6) that the defendant acquiesced in the delay; (7) that the defendant's answer admitted that she owed plaintiff a portion of the prayer; and (8) that the plaintiff's case was proved by substantial competent evidence, which was unrefuted.

K.S.A.1975 Supp. 60-241(b) provides that:

'For failure of the plaintiff to prosecute . . . a defendant may move for dismissal of an actio nor of any claim against him. . . .'

Cases decided by this court prior to the enactment of the above statute hold that the power of the courts to dismiss a case for failure to prosecute with diligence is inherent and exists without specific statutory authority. Reddington v. Rank, 176 Kan. 484, 271 P.2d 807; Carter v. State Department of Social Welfare, 186...