Maxfield v. Rushton

• Decision Date: 23 August 1989
• Docket Number: No. 880332-CA,880332-CA
• Citation: 779 P.2d 237
• Parties: Reed MAXFIELD, Plaintiff and Appellant, v. Owen A. RUSHTON and Carol Rushton, his wife, Defendants and Respondents. Owen A. RUSHTON and Carol Rushton, his wife, Third-Party Plaintiffs and Respondents, v. STATE of Utah, By and Through UTAH STATE DEPARTMENT OF SOCIAL SERVICES, Third-Party Defendants and Co-Respondents.
• Court: Utah Court of Appeals

Page 237

779 P.2d 237

Reed MAXFIELD, Plaintiff and Appellant, v.Owen A. RUSHTON and Carol Rushton, his wife, Defendants andRespondents.

Owen A. RUSHTON and Carol Rushton, his wife, Third-Party Plaintiffs and Respondents, v.STATE of Utah, By and Through UTAH STATE DEPARTMENT OF

SOCIAL SERVICES, Third-Party Defendants and Co-Respondents.

No. 880332-CA.

Court of Appeals of Utah.

Aug. 23, 1989.

Lorin N. Pace, Salt Lake City, for plaintiff and appellant.

Henry S. Nygaard, Salt Lake City, for defendants and respondents.

David L. Wilkinson, Stephen G. Schwendiman, Bernard M. Tanner, Leonard E McGee, Salt Lake City, for third-party defendants and co-respondents.

Before GARFF, GREENWOOD and ORME, JJ.

GARFF, Judge:

Plaintiff and appellant, Reed Maxfield, appeals the trial court's dismissal of his action against defendants and respondents, Owen A. and Carol Rushton, and the State of Utah, for failure to prosecute.We affirm the trial court's dismissal of his action.

We recite only those facts pertinent to disposition of this appeal.

Maxfield initially filed his complaint in this action on October 20, 1980, alleging that the Rushtons had wrongfully deprived him of his property by purchasing it through an illegal sheriff's sale.The Rushtons filed their answer and counterclaim on April 1, 1981, along with a third-party complaint against the State of Utah, requesting reimbursement of the purchase price for the property if the court should find in Maxfield's favor.On April 14, 1981, the State answered the Rushtons' third-party complaint and filed a third-party complaint against Maxfield.

From October 20, 1980 until December 14, 1984, various motions were filed by the parties, primarily by Maxfield, resulting in obfuscation of the issues and protracted delay.Two additional factors contributed to the delay: an eighteen month interruption while the Rushtons were on a mission for their church, and a bankruptcy filing by Maxfield.

The case remained in limbo for nearly two years as a result of Maxfield's bankruptcy.Finally, on November 18, 1986, the Rushtons filed a certificate of readiness for trial.Ten days later, Maxfield objected to setting the case for trial because he wished to amend his complaint by adding further claims against the State, his discovery was incomplete, his bankruptcy stay was presently effective, and his new attorney needed time to familiarize himself with the case.Despite Maxfield's objections, on February 20, 1987, the bankruptcy court ordered that the case could be heard in district court.Thereupon, the State filed for an immediate trial setting.

On March 4, 1987, Maxfield's counsel withdrew because Maxfield had failed to pay him.On March 20, 1987, the Rushtons gave Maxfield notice to obtain substitute counsel and, again, moved for an immediate trial setting.A hearing was scheduled on this motion for June 1, 1987.On May 18, 1987, Maxfield filed a pro se objection to the trial setting on the grounds that he was incapable of handling the case himself and that he was in the process of seeking new counsel.

At the June 1 hearing, the court set trial for September 15, 1987, and scheduled a pretrial hearing on August 31, 1987.All discovery was to be completed prior to August 17, 1987.

On August 10, 1987, the State certified to the court that it had complied with Maxfield's discovery requests, answered Maxfield's proposed second amended complaint, and moved for summary judgment against Maxfield.Maxfield filed a motion to dismiss all claims by other parties against him because of his discharge in bankruptcy and filed an objection to the trial setting, requesting a two month continuance on the grounds that his new counsel had scheduling problems and that he intended to file a third amended complaint.The court scheduled a hearing on the State's motion for summary judgment for August 24, 1987.

Between August 11 and 17, 1987, the parties filed more miscellaneous motions.On August 17, 1987, the court denied Maxfield's motion to continue the trial date or to extend discovery time.Thereafter, Maxfield filed a response to the State's motion for summary judgment, alleging insufficient discovery time, and filed his third amended complaint, which set forth a new conspiracy theory between the Rushtons and the State.

On August 20, 1987, the State submitted a list of expected witnesses and a certificate of compliance with Maxfield's discovery requests.The following day, it objected to Maxfield's third amended complaint.The Rushtons filed a similar objection.The trial court heard all the parties' motions on August 24, 1987, denying Maxfield's motion to file a third amended complaint and also the State's motion for summary judgment.

At the pretrial hearing on August 31, 1987, the trial court again denied the parties' prior motions.Maxfield's new attorney moved to withdraw as counsel.The court denied counsel's motion to withdraw, and ordered that Maxfield's action be dismissed for failure to timely prosecute.Maxfield subsequently appealed this order.

On appeal, Maxfield argues that the trial court erred in: (1) dismissing his action for failure to prosecute; (2) refusing to grant summary judgment in his favor; and (3) refusing either to void the sheriff's sale, thereby quieting title in his favor, or to grant him the immediate right to redeem the properties.

The trial court dismissed Maxfield's cause of action, pursuant to Rule 41(b) of the Utah Rules of Civil Procedure, for his "failure to timely prosecute the case."¹Such a dismissal, under Rule 41(b), "operates as an adjudication upon the merits" of the case.

It is well established that the trial court may, on its own motion, dismiss an action for want of prosecution under Rule 41(b).Brasher Motor & Fin. Co. v. Brown, 23 Utah 2d 247, 461 P.2d 464, 464-65(1969);Charlie Brown Constr. Co. v. Leisure Sports Inc., 740 P.2d 1368, 1370(Utah Ct.App.1987).This authority is 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."Charlie Brown Constr. Co., 740 P.2d at 1370(quotingLink v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734(1962)).Therefore, the trial court has "a reasonable latitude of discretion in dismissing for failure to prosecute if a party fails to move forward according to the rules and the directions of the court, without justifiable excuse."Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor Inc., 544 P.2d 876, 878-79(Utah1975)(footnote omitted).Consequently, a lower court's dismissal of a case under Rule 41(b) will not be disturbed on appeal unless it is clear from the record that it has abused its discretion.Wilson v. Lambert, 613 P.2d 765, 767(Utah1980);Department of Social Servs. v. Romero, 609 P.2d 1323, 1324(Utah1980);Reliance Nat. Life Ins. Co. v. Caine, 555 P.2d 276, 277(Utah1976);Thompson Ditch Co. v. Jackson, 29 Utah 2d 259, 508 P.2d 528, 529(1973).

A court's discretion, however, must be balanced against a higher priority: to "afford disputants an opportunity to be heard and to do justice between them."Westinghouse Elec. Supply Co., 544 P.2d at 879.Thus, there is more to consider in determining if a dismissal for failure to prosecute is proper than merely the amount of time elapsed since the suit was filed.Id.The factors which we consider may include the following: (1) The conduct of both parties; (2) the opportunity each party has had to move the case forward; (3) what each of the parties has done to move the case forward; (4) what difficulty or prejudice may have been caused to the other side; and (5) most important, whether injustice may result from the dismissal.K.L.C. Inc. v. McLean, 656 P.2d 986, 988(Utah1982);Utah Oil Co. v. Harris, 565 P.2d 1135, 1137(Utah1977).

After a thorough review of the record, we find that Maxfield was dilatory in prosecuting the case.After he filed his complaint on October 20, 1980, he amended it twice and attempted to amend it yet a third time, each time adding additional theories of the case.He moved three times for summary judgment: the first time on March 11, 1981, prior to joinder of the State; the second time on May 30, 1984; and the third time on June 19, 1984, when he neglected to give adequate notice of the hearing to opposing counsel.He filed an interlocutory appeal in 1981, appealing the trial court's refusal to grant his first motion for summary judgment, which the supreme court declined to hear.He then filed a number of miscellaneous, primarily self-serving motions over the course of the proceedings, none of which served to move the case forward, but were, instead, apparent attempts to circumvent the denial of his motions for summary judgment.He further delayed prosecution of the case for nearly two years by filing for bankruptcy on December 10, 1984, shortly before the case was to come to trial.During this bankruptcy action, he assigned his interest in the disputed property, which was his major asset, to a corporation which he allegedly owned and controlled as the primary shareholder.Further, on the three occasions trial dates were set, he objected to the trial settings on the grounds that he wished to amend his complaint, that he was involved in the bankruptcy proceeding, and that his new counsel had inadequate preparation time.During the course of the action, he retained three different attorneys, two of whom withdrew from the case because of his failure to pay them.He filed no certificates of readiness for trial and, despite his protests as to insufficient discovery time, no motions for the taking of depositions.

Although the Rushtons did not answer Maxfield's complaint for approximately six and one-half months after it was initially filed, the rest of their conduct and that of the State generally served to move the case along....