Lake Meredith Reservoir Co. v. Amity Mut. Irr. Co.
| Decision Date | 29 April 1985 |
| Docket Number | A,No. 2,No. 83SA299,2,83SA299 |
| Citation | 698 P.2d 1340 |
| Parties | LAKE MEREDITH RESERVOIR COMPANY, a Colorado corporation, Appellant, v. The AMITY MUTUAL IRRIGATION COMPANY, a Colorado corporation, the Box Springs Canal and Reservoir Company, a corporation, Twin Lakes Reservoir and Canal Company, and Robert W. Jesse, Division Engineer for Water Divisionppellees, and The Fort Lyon Canal Company, Intervenor-Appellee. |
| Court | Colorado Supreme Court |
Moses, Wittemyer, Harrison and Woodruff, P.C., John Wittemyer, Timothy J. Beaton, Boulder, for appellant.
Shinn Lawyers, Carl M. Shinn, Lamar, for appellee The Amity Mut. Irr. Co.
Lefferdink & Davis, John J. Lefferdink, Lamar, Calkins, Kramer, Grimshaw & Harring, Wayne B. Schroeder, P.C., Bruce D. Bernard, Denver, for intervenor-appellee.
No appearance for The Box Springs Canal and Reservoir Co., Twin Lakes Reservoir and Canal Co., and Robert W. Jesse, Div. Engineer for Water Div. No. 2.
The Lake Meredith Reservoir Company (Lake Meredith) appeals from a judgment of the District Courts in and for Water Division 2 (water court) dismissing for lack of prosecution a suit filed by Lake Meredith in 1931. We affirm.
In 1931, Lake Meredith filed an action in Bent County District Court against The Arkansas Valley Sugar Beet and Irrigated Land Company (Land Company), predecessor-in-interest to appellee The Amity Mutual Irrigation Company (Amity), and two other defendants. 1 The suit involved a dispute over the relative priorities of certain water rights held by Lake Meredith and by the Land Company. 2
The Land Company, a New Jersey corporation, removed the case to federal court on the ground of diversity of citizenship. There the matter remained until 1939. When Amity, a Colorado corporation, succeeded to the interests of the Land Company and in 1939 was substituted for that company as a defendant, diversity was destroyed, and the case was remanded to the Bent County District Court. In April 1944, the suit was dismissed by the district court for failure on the part of Lake Meredith to prosecute diligently, but the case was soon reinstated upon Lake Meredith's motion. Amity filed an answer in October 1944.
On June 7, 1945, Lake Meredith and the defendants, including Amity, entered into the following stipulation, which was filed with the court on June 10:
NOW COME the above named plaintiff [Lake Meredith] in the above entitled cause, by Frank N. Bancroft and Harry E. Mast, its attorneys, and the above entitled defendants [Amity and the other two defendants] by Henry C. Vidal and Alfred Todd, their attorneys, and at plaintiff's request stipulate and agree that the above entitled cause shall, with the approval of the Court, stand upon the docket of the Court without being set for hearing and without any further orders being entered in said cause, with the understanding that said cause, or any motion by either of the parties hereto, may be set at any time by either of the parties upon ten days' notice to the other party.
There is no indication on the written agreement or elsewhere in the record that the district judge approved the stipulation or acknowledged that it was filed. The next action shown in the record is a motion to dismiss for lack of prosecution filed by Amity in 1947. The court denied the motion. Then, on April 5, 1949, the district court "retired" the case from the docket on its own motion. It can be inferred from the record that this action was taken as part of a general review of the status of pending cases.
Nothing further happened until 1982, when, during hearings on a change-of-water-right proceeding filed by Amity in 1980, Lake Meredith's present counsel first learned of the existence of the 1931 suit. At Lake Meredith's request, on September 14, 1982, the division 2 water judge ordered the clerk of the Bent County District Court to transmit the record in the 1931 suit to the water court. 3 In October 1982, Lake Meredith filed a motion that the complaint in that suit be amended by the deletion of certain claims for relief and that summary judgment be granted on the remaining claims. Hearing on the motion was set for February 24, 1983.
The Fort Lyon Canal Company (Fort Lyon) filed a motion to intervene in the 1931 suit on February 15, 1983, on the ground that Fort Lyon had acquired an interest from Amity in one of the water rights at issue in that suit. Along with the motion to intervene, Fort Lyon filed a motion to dismiss for lack of prosecution. Amity then filed a separate motion to dismiss for failure to prosecute.
On February 24, 1983, the water court granted Fort Lyon's motion to intervene and the motions of Fort Lyon and Amity to dismiss for lack of prosecution. Lake Meredith appeals. 4
Lake Meredith argues that the water court erred in dismissing the suit for an alleged failure on the part of Lake Meredith to prosecute diligently. We reject this argument.
The district courts have the inherent power to dismiss a claim for failure to prosecute. Rudd v. Rogerson, 152 Colo. 370, 374, 381 P.2d 995, 998 (1963); Cervi v. Town of Greenwood Village, 147 Colo. 190, 193, 362 P.2d 1050, 1052 (1961). This power is reinforced by C.R.C.P. 41(b)(1), which recognizes that a court may dismiss a claim on a defendant's motion for failure to prosecute, and by C.R.C.P. 41(b)(2), which provides that a court upon reasonable notice and pursuant to rules may dismiss actions not prosecuted or brought to trial with due diligence. The procedures for effecting dismissal for failure to prosecute are detailed in C.R.C.P. 121(b), section 1-10. Except where altered by statute, the water courts have the same inherent powers and status as the district courts. Cf. Michel v. Front Range Land & Livestock Co., 638 P.2d 74, 75 (Colo.1981). With the same limitation, the Colorado Rules of Civil Procedure apply in water court proceedings. C.R.C.P. 81(a); Colorado River Water Conservation District v. Rocky Mountain Power Co., 174 Colo. 309, 312-14, 486 P.2d 438, 440-41 (1971). The statutes contain no special criteria or procedures concerning dismissal for failure to prosecute claims in the water courts.
The decision whether to dismiss an action because of the plaintiff's failure to prosecute lies within the sound discretion of the trial court. Rudd v. Rogerson, 152 Colo. 370, 374, 381 P.2d 995, 998 (1963); Cervi v. Town of Greenwood Village, 147 Colo. 190, 193, 362 P.2d 1050, 1052 (1961); BA Leasing Corp. v. Board of Assessment Appeals, 653 P.2d 80, 81 (Colo.App.1982). The burden is upon the plaintiff to prosecute a case in due course without unusual or unreasonable delay. Cervi v. Town of Greenwood Village, 147 Colo. at 193, 362 P.2d at 1052; Johnson v. Westland Theatres, Inc., 117 Colo. 346, 349, 187 P.2d 932, 933 (1947); BA Leasing Corp. v. Board of Assessment Appeals, 653 P.2d at 81. When evaluating a motion to dismiss for failure to prosecute, a trial court must bear in mind that courts "exist primarily to afford a forum to settle litigable matters between disputing parties." Mizar v. Jones, 157 Colo. 535, 537, 403 P.2d 767, 769 (1965). In the absence of a showing by the plaintiff of mitigating circumstances or a reasonable excuse for the delay, however, an unusual delay in prosecution justifies an exercise of the trial court's discretion in dismissing an action. 5 Rudd v. Rogerson 152 Colo. at 374, 381 P.2d at 998; Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928); BA Leasing Corp. v. Board of Assessment Appeals, 653 P.2d 80 (Colo.App.1982).
Certainly, a delay of thirty-seven years in prosecuting an action is unusual. Lake Meredith, however, asserts three reasons why the water court's dismissal was an abuse of discretion even under this extreme circumstance.
First, Lake Meredith argues that a motion to dismiss for lack of prosecution cannot be granted, even if the plaintiff has been guilty of gross negligence in pursuing the action, if the plaintiff resumes diligent prosecution of the claim before the motion to dismiss is filed. Lake Meredith relies on Farber v. Green Shoe Mfg. Co., 42 Colo.App. 255, 256-57, 596 P.2d 398, 399-400, cert. denied (1979), in which the court of appeals adopted this rule of law, relying upon decisions from other jurisdictions.
Whether a plaintiff has resumed prosecution after a lengthy delay should be an important factor in the trial court's consideration of a motion to dismiss for failure to prosecute. Nevertheless, a unilateral resumption of prosecution should not insulate a plaintiff from dismissal for lack of prosecution as a matter of law and in all circumstances. The trial court should also consider a number of other relevant factors in the exercise of its discretion--e.g., the length of delay, the reasons for the delay, the prejudice that will result to the defendant by allowing the matter to continue, the difficulties in trying the case as a result of the delay, the nature and extent of the plaintiff's renewed efforts--when balancing the policy favoring prevention of unreasonable delay in litigation against the policy favoring resolution of disputes on the merits.
Furthermore, it is not the defendant's burden to prosecute the action with diligence, and the defendant is under no obligation to prod the plaintiff into action by filing motions to dismiss while the case lies dormant. Rathbun v. Sparks, 162 Colo. 110, 115, 425 P.2d 296, 299 (1967); Yampa Valley Coal Co. v. Velotta, 83 Colo. at 238, 263 P. at 719. Therefore, the defendant should not be foreclosed from complaining about the plaintiff's lack of diligent prosecution simply because of the unilateral resumption of the action by the plaintiff after an unreasonable delay.
We cannot say, on the record before us, that the water court abused its discretion in dismissing Lake Meredith's suit when Lake Meredith resurrected the action after a delay of thirty-seven years and filed a motion to amend the complaint and for summary judgment....
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