Eischen v. Wayne Tp.
| Decision Date | 02 January 2008 |
| Docket Number | No. 24438.,24438. |
| Citation | 2008 SD 2,744 N.W.2d 788 |
| Parties | Paul EISCHEN, Sharon Eischen, Jim Eischen, John Eischen and Eric Eischen, Plaintiffs and Appellants, v. WAYNE TOWNSHIP and Wayne Township Volunteer Fire Department, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
Aaron D. Salberg, Salberg Law Firm, PC, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
Douglas M. Deibert of Cadwell, Sanford, Delbert & Garry, L.L.P., Sioux Falls, South Dakota, Attorneys for defendants and appellees.
[¶ 1.] In connection with a suit claim, stemming from a November 10, 1998 fire at their residence, plaintiffs Paul, Sharon, Jim, John and Eric Eischen (collectively "Eischens") filed a negligence claim against defendants, Wayne Township Volunteer Fire Department (the "Volunteer Fire Department") and Wayne Township (defendants hereafter collectively, the "Township"), on November 9, 2001. On July 21, 2003, the Township filed a motion for summary judgment in the South Dakota Second Judicial Circuit Court. On December 9, 2003, the circuit court entered its order granting partial summary judgment. On August 3, 2005, the Township filed a motion to dismiss for failure to prosecute pursuant to SDCL 15-6-41(b). The circuit court granted the motion and entered its judgment of dismissal on September 7, 2005.
[¶ 2] On November 7, 2005, Eischens served notice of appeal of the circuit court's order granting partial summary judgment and the final judgment of dismissal. On October 3, 2006, this Court heard oral arguments on Eischens' appeal. On November 3, 2006, we dismissed Eischens' appeal of the circuit court's grant of partial summary judgment as not reviewable under SDCL 15-26A-3 and ordered that on the issue of dismissal the case be reversed and remanded to the circuit court for entry of findings of fact and conclusions of law pursuant to SDCL 15-6-41(b).
[¶ 3.] On January 8, 2007, the circuit court entered judgment of dismissal with findings of fact and conclusions of law. We affirm.
[¶ 4.] The events surrounding this case began with a fire at Eischens' residence in rural Minnehaha County, west of Sioux Falls, South Dakota, on the morning of November 10, 1998. The weather was atrocious, essentially developing into blizzard conditions. In spite of the weather, which delayed the response time of the Volunteer Fire Department, Eischens claimed they were gaining some control over the fire on their own, prior to the arrival of the firefighters. After the Volunteer Fire Department arrived, one mishap after another plagued the firefighters' efforts with the upshot being that the fire grew into an all-consuming inferno that destroyed Eischens' home and all of their personal property therein.
[¶ 5.] The record `reflects the following activity in this case, almost entirely initiated by the Township:
1. October 18, 2001: Eischens serve Township with summons and complaint for negligence seeking damages in connection with the loss of their home and personal property. The complaint was filed on November 9, 2001.
2. November 1, 2001: Township serves answers and first set of interrogatories and requests production of documents.
3. January 31, 2002: Eischens serve answers to interrogatories.
4. February 6, 2002: Defense counsel's letter to plaintiffs' counsel requesting Eischens' depositions and identity of persons that plaintiffs' counsel wants to depose.
5. March 4, 2002: Defense counsel's letter to plaintiffs' counsel following up on February 6, request for Eischens' depositions.
6. March 27, 2002: Defense counsel's letter to plaintiffs' counsel with motion for scheduling order and follow-up request for identity of persons that plaintiffs' counsel wants to depose.
7. March 28, 2002: Defense counsel's letter to plaintiffs' counsel confirming March 28 telephone call from plaintiffs' counsel during which depositions of Paul Eischen and plaintiffs' expert Terry Steenholdt were scheduled for April 25, 2002. Letter includes follow-up request for persons that plaintiffs' counsel wants to depose and corresponding scheduling request.
8. April 12, 2002; Defense counsel's letter to plaintiffs' counsel with notices of depositions and request for identity of persons that plaintiffs' counsel wants to depose.
9. April 19, 2002: Defense counsel's letter to plaintiffs' counsel regarding depositions and follow-up in reference to identity of persons that plaintiffs' counsel wants to depose.
10. April 24, 2002: Defense counsel's letter to plaintiffs' counsel regarding depositions.
11. April 24, 2002: Defense counsel's letter to plaintiffs' counsel regarding rescheduling of depositions following plaintiffs' counsel's notification that a plaintiffs' expert, Steenholdt, would not be available.
12. April 29, 2002: Defense counsel's letter to plaintiffs' counsel requesting follow-up on tentatively rescheduled depositions for May 1, 2002.
13. May 1, 2002: Defense counsel's letter to plaintiffs' counsel discussing potential subpoena for Steenholdt.
14. May 9, 2002: Defense counsel's letter to plaintiffs' counsel requesting follow-up on tentatively rescheduled depositions for May 14, 2002.
15. May 13, 2002: Defense counsel's letter to plaintiffs' counsel with proposed stipulation for entry of 26. deposition scheduling order and request for disclosure of experts.
16. June 11, 2002: Defense counsel's letter to plaintiffs' counsel requesting signature and return of scheduling order sent May 13.
17. June 17, 2002: Defense counsel's letter to the circuit court with stipulated scheduling order.
18. June 21, 2002: Entry of stipulated scheduling order, including June 30 deadline for disclosure of plaintiffs' experts and October 1 deadline for completion of discovery.
19. June 24, 2002: Defense counsel's letter to plaintiffs' counsel with notice of entry of scheduling order.
20. June 29, 2002: Plaintiffs' counsel's letter to defense counsel disclosing plaintiffs' expert, John Woodland.
21. July 1, 2002: Defense counsel's letter to plaintiffs' counsel requesting deposition schedule for plaintiffs' expert and Paul Eischen.
22. July 15, 2002: Defense counsel's letter to plaintiffs' counsel following up on July 1 request for scheduling of depositions.
23. July 24, 2002: Defense counsel's letter to plaintiffs' counsel confirming July 23 telephone conversation during which deposition of plaintiffs' expert, Woodland, was tentatively scheduled for September 6.
24. August 1, 2002: Defense counsel's letter to plaintiffs' counsel requesting confirmation of deposition tentatively scheduled for September 6.
25. August 15, 2002: Defense counsel's letter to plaintiffs' counsel acknowledging August 14 telephone call during which plaintiffs' counsel confirmed expert's deposition for September 6.
26. August 23, 2002: Defense counsel's letter to plaintiffs' counsel regarding time of September 6 deposition.
27. September. 3, 2002: Defense counsel's letter;to plaintiffs' counsel confirming telephone call on same day during which September 6 deposition was scheduled for 12:00 a.m.
28. September 6, 2002: Plaintiffs' expert, Woodland, deposed.
29. September 11, 2002: Defense counsel's letter to plaintiffs' counsel requesting follow up information from Woodland's deposition, deposition of Paul Eischen, and disclosure of identity of persons that plaintiffs' counsel wants to depose.
30. October 8, 2002: Defense counsel's letter to plaintiffs' counsel following up on items requested in September 11, 2002 letter.
31. October 23, 2002: Defense counsel's letter to plaintiffs' counsel containing notice of November 12, 2002 deposition of Paul Eischen, Township's second set of interrogatories and request for production of documents related to expert's deposition, and follow-up on items requested in September 11 and October 8 letters.
32. November 11, 2002: Defense counsel's letter to plaintiffs' counsel confirming November 8 telephone call during which plaintiffs' counsel informed defense counsel that Paul Eischen was unavailable for deposition on November 12. Letter included amended notice of deposition scheduled for November 27. Letter also renewed request for disclosure of identity of persons that plaintiffs' counsel wanted to depose.
33. November 27, 2002: Paul Eischen deposed.
34. July 18, 2003: Defense counsel serves notice of motion for summary judgment along with notice of August 25, 2003 hearing.
35. August 18, 2003: Defense counsel's letter to plaintiffs' counsel confirming telephone conversation of same day during which motions hearing was rescheduled until September 15.
36. September 4, 2003: Defense counsel's letter to plaintiffs' counsel requesting plaintiffs' responsive brief by September 8.
37. September 9, 2003: Plaintiffs' letter to defense counsel including plaintiffs' affidavits, promise of delivery of responsive brief same day or by September 10, and request to reschedule motions hearing.
38. September 10, 2003: Second amended notice of hearing motion for summary judgment. Hearing rescheduled to September 29, 2003.
39. September 15, 2003: Defense counsel's letter to plaintiffs' counsel renewing request for delivery of plaintiffs' responsive brief.
40. September 23, 2003: Defense counsel's letter to plaintiffs' counsel noting that responsive brief has still not been delivered and setting out chronology of delay dating back to first postponement of motions hearing in August 2003.
41. September 26, 2003: Plaintiffs' counsel's letter to defense counsel with motions for extension of time to complete responsive brief and for postponement of motions hearing.
42. September 29, 2003: Defense counsel's letter to plaintiffs' counsel with copy of proposed order of continuance.
43. October 8, 2003: Order of continuance entered with hearing on motion for summary judgment rescheduled to November 12, 2003.
44. October 10, 2003: Defense counsel's...
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... ... courts findings of fact under the clearly erroneous standard, while we apply the de novo standard when reviewing its conclusions of law." Eischen v. Wayne Twp. , 2008 S.D. 2, 10, 744 N.W.2d 788, 794. We review the circuit courts ultimate decision to dismiss "a claim for failure to prosecute ... ...