Pdc Consulting, Inc. v. Porter

• Decision Date: 23 October 2008
• Docket Number: No. 20060920-CA.,20060920-CA.
• Citation: Pdc Consulting, Inc. v. Porter, 196 P.3d 626, 2008 UT App 372 (Utah App. 2008)
• Parties: PDC CONSULTING, INC., Plaintiff and Appellant, v. Jared PORTER, Defendant and Appellee.
• Court: Utah Court of Appeals

196 P.3d 626

2008 UT App 372

PDC CONSULTING, INC., Plaintiff and Appellant, v.Jared PORTER, Defendant and Appellee.

No. 20060920-CA.

Court of Appeals of Utah.

October 23, 2008.

Ronald Ady, Salt Lake City, for Appellant.

Matthew H. Raty, Sandy, for Appellee.

Before Judges GREENWOOD, McHUGH, and ORME.

MEMORANDUM DECISION

McHUGH, Judge:

¶ 1AppellantPDC Consulting, Inc.(PDC) appeals the trial court's September 6, 2006 order dismissing PDC's complaint with prejudice.PDC argues that the trial court exceeded its discretion when it dismissed the claims against AppelleeJared Porter.We affirm the trial court's order dismissing the action.

¶ 2 PDC filed its complaint against Porter—a former employee—on April 6, 2001, and the parties executed a settlement agreement shortly thereafter.Two years later, Porter filed a motion to enforce the settlement, and PDC subsequently filed a motion to have the court set aside that settlement agreement.Finding that there were genuine issues of material fact in dispute, the trial court denied both motions in a ruling entered on November 3, 2003.¹A year later, in November 2004, the trial court held an order to show cause hearing, after which it ordered that discovery on the issue of whether the settlement agreement should be set aside be completed within ninety days.The parties later stipulated to extend discovery an additional sixty days, until April 30, 2005.

¶ 3 On April 4, 2006, the trial court held another order to show cause hearing, during which it ordered that PDC submit a new scheduling order or a certificate of readiness for trial by April 30, 2006.²PDC filed a certificate of readiness for trial on April 28, 2006, and on May 8, 2006, Porter filed both an objection to PDC's certificate of readiness and a motion to dismiss.PDC did not oppose Porter's motion until August 10, 2006, at which time it filed a motion to strike both Porter's objection to PDC's certificate of readiness and his motion to dismiss.That same day, the trial court held oral argument and ordered that the action be dismissed.The dismissal was memorialized in the court's September 6, 2006 order, which PDC challenges in this appeal.

¶ 4The trial court dismissed PDC's case on three grounds: (1) PDC "failed to prosecute the case,"(2) PDC "failed to timely renew its denied motion to set asidethe parties' April 15, 2001 settlement agreement within the dates and extensions given by [the]court and opposing counsel," and (3) PDC "failed to timely oppose [Porter]'s motion to dismiss."Because the trial court's first and second grounds for dismissal are closely interrelated, we will analyze both grounds within the context of PDC's failure to prosecute its case.³

¶ 5"[We] do not disturb [a trial court's order of dismissal for failure to prosecute] absent an abuse of discretion and a likelihood that an injustice occurred."Hartford Leasing Corp. v. State,888 P.2d 694, 697(Utah Ct.App.1994);see alsoCharlie Brown Constr. Co. v. Leisure Sports Inc.,740 P.2d 1368, 1370(Utah Ct.App.1987)("This Court will not interfere with [a trial court's] decision [to dismiss for failure to prosecute] unless it clearly appears that the court has abused its discretion and that there is a likelihood an injustice has been wrought."(citingDepartment of Soc. Servs. v. Romero,609 P.2d 1323, 1324(Utah1980))).Under rule 41 of the Utah Rules of Civil Procedure, "a defendant may move for dismissal of an action ... against him" where "the plaintiff[fails] to prosecute."Utah R. Civ. P. 41(b).In other words, it is well within a trial court's discretion to dismiss a case under rule 41(b) when "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, 879(Utah1975)(citingUtah R. Civ. P. 37;Maxfield v. Fishler,538 P.2d 1323, 1324-25(Utah1975)).

¶ 6Utah appellate courts analyze whether a case was properly dismissed for failure to prosecute using the following five factors (the Westinghouse factors):

(1) the conduct of both parties; (2) the opportunity each party has had to move the case forward; (3) what each party has done to move the case forward; (4) the amount of difficulty or prejudice that may have been caused to the other side; and (5)"most important, whether injustice may result from the dismissal."

Meadow Fresh Farms, Inc. v. Utah State Univ. Dep't of Agric. & Applied Sci.,813 P.2d 1216, 1219(Utah Ct.App.1991)(quotingWestinghouse,544 P.2d at 879).We agree with Porter that "there is ample evidence in the record" supporting the trial court's order to dismiss in light of these five factors.

¶ 7 With respect to the first three Westinghouse factors, we consider the parties' conduct, what they had the opportunity to do, and what was actually done to move the case forward.PDC was told early in this litigation what it needed to do if it wished to litigate the allegations of its complaint on the merits.In 2001, the trial court indicated, and PDC agreed, that it was PDC's burden to set aside the settlement agreement if it wished to resume prosecution of the matter:

[PDC's Counsel]: Well, but at the time that we signed this the fraudulent inducement, then the agreement can't operate.

The [Court]: All right.But you need to make a motion then to set aside the settlement agreement—

[PDC's Counsel]: Correct.

The [Court]: — based on his fraud.Is that correct?I would assume.

[PDC's Counsel]: I would think we do, sir.Yes.

(Emphasis added.)Later, at that same hearing, the trial court discussed the effects of the settlement agreement with Porter's counsel:

[Porter's Counsel]: Well, the issue is we want you to order him to dismiss as he agreed to do in the settlement agreement.

The [Court]: Then you need to move to enforce it then.

[Porter's Counsel]: To file a motion?

The [Court]: Un-huh (affirmative).

[Porter's Counsel]: Okay.

¶ 8 For two years, neither party did anything to invalidate or to enforce the settlement agreement.Indeed, it was not until after Porter filed his motion to enforce the agreement in 2003 that PDC finally filed a motion to have the agreement set aside.In its November 2003 ruling on those motions, the trial court held "that genuine issues of material fact exist[ed]" regarding "the parties' compliance or non-compliance with" their executed settlement agreement.The parties, however, again did nothing to resolve this matter.Indeed, a full year later the trial court issued an order to show cause why the case should not be dismissed for failure to prosecute and, after the hearing, ordered discovery on the enforceability of the settlement agreement "to be complete[d] within 90 days."Again, PDC did nothing to set the settlement agreement aside, and another year passed before the trial court held a second order to show cause hearing in 2006.

¶ 9 PDC argues on appeal that "the only delay at issue before the trial court on August 10, 2006 was the eleven months of delay accruing since the expiration of the April 30, 2005 discovery cut-off."⁴According to PDC, any delay prior to the trial court's November 30, 2004 order was not considered at the order to show cause hearing on April 4, 2006.Instead, PDC contends that the only delay relied upon by the trial court and thus relevant on appeal is that which accrued from November 30, 2004, until April 4, 2006.PDC, however, cites no authority which would limit the trial court's consideration to only some of the periods when nothing was done to advance this case.Furthermore, the court's August 10, 2006 ruling from the bench expressly discussed time lapses prior to April 30, 2005,⁵ and we likewise consider the lack of diligence in prosecuting this matter from its inception.The record leaves no doubt that PDC had the opportunity to move the case forward but failed to do so.

¶ 10 PDC also argues that "under the terms of the November 26, 2003 order both parties were equally charged with prosecuting their respective claims regarding the April 15, 2001 agreement" but "[n]either party moved the case forward in the sixteen months from November 30, 2004 to April 4, 2006.""Although inaction on the part of a defendant may contribute to the justifiability of a plaintiff's excuse for delay, the duty to prosecute is a duty of due diligence imposed on a plaintiff, not on a defendant."Country Meadows Convalescent Ctr. v. Utah Dep't of Health,851 P.2d 1212, 1216(Utah Ct.App.1993)(citingMeadow Fresh Farms, Inc.,813 P.2d at 1218).PDC could not proceed with litigation so long as the settlement agreement remained effective.⁶Consequently, PDC needed to invalidate that agreement to move its case forward.In contrast, Porter had no interest in disturbing the status quo-as long as the settlement agreement remained in effect, PDC could not pursue its underlying lawsuit against Porter.As the plaintiff, PDC did not fulfill its duty to move its case forward,⁷ nor can it point to anything Porter did or failed to do that contributed to PDC's own delays.⁸SeeCountry Meadows Convalescent Ctr.,851 P.2d at 1216.

¶ 11We likewise are unpersuaded by PDC's argument that its prosecution of the case was somehow hampered by Porter's failure to file his motion to dismiss earlier.PDC was always able to compel discovery, if necessary; retain experts; and request an evidentiary hearing pursuant to the trial court's November 26, 2003 ruling and explicit instructions:

It is this Court's opinion that a lengthy evidentiary hearing is probably implicated, that experts would need to be employed, and that each party might need to seek new legal counsel.In light of this opinion, the Court invites the parties to seriously reconsider the proposed resolution of the case.

¶ 12 The fourth and fifth Westinghouse factors, prejudice and injustice, likewise support the trial court's dismissal.SeeMeadow Fresh Farms, Inc. v....