Provo City v. Hansen, 15772
| Decision Date | 14 May 1979 |
| Docket Number | No. 15772,15772 |
| Citation | 601 P.2d 141 |
| Parties | UTAH 79-98 PROVO CITY, a Municipal corporation, and Timpanogos Canal Company, a Utah Corporation, Plaintiffs and Appellants, v. Dee C. HANSEN, as State Engineer of the State of Utah, and United States of America, Bureau of Reclamation, Department of the Interior, Defendants and Respondents, Provo River Water Users Association, a corporation, Metropolitan Water District of Salt Lake City, Utah Lake Distributing Company, a corporation, Kennecott Copper Corporation, a corporation, Salt Lake City, a municipal corporation, Central Utah Water Conservancy District, Scott P. Wallace and Ruth Wallace, his wife, Darrell A. Conrad, Vilate P. Conrad, Charles Elmwood Conrad and Alice P. Conrad, his wife, and Utah Power and Light Company, Intervenors. |
| Court | Utah Supreme Court |
Jackson Howard of Howard, Lewis & Petersen, Provo, for plaintiffs and appellants.
Dallin W. Jensen, Asst. Atty. Gen., Salt Lake City, for State Engineer.
Ronald L. Rencher, U.S. Atty., Salt Lake City, for United States.
Dayle Jeffs, Provo, Edward W. Clyde, James B. Lee, Salt Lake City, Joseph Novak, Provo, for intervenors.
Appeal from the dismissal with prejudice of a de novo review 1 of a decision of the State Engineer.
On February 14, 1968, Timpanogos Canal Company filed a change application with the State Engineer to change the point of diversion and nature of use of certain water during the nonirrigation season. The water had been contracted to Provo City. Protests were lodged and hearings were conducted. On August 9, 1974, the State Engineer rendered a decision which approved the application but assigned limitations and express conditions as to time, amount, and use of the water.
On October 4, 1974, plaintiffs filed suit challenging the State Engineer's decision. After various motions were made, the court ruled on February 27, 1975, that applicants for intervention could intervene and file their answers. The court further held that Utah Power and Light Company and the United States of America were indispensible parties and ordered plaintiffs to join them. An amended complaint was filed on March 19, 1975. After filing the amended complaint, plaintiffs filed answers to interrogatories (July 8, 1975), filed a request for production of documents (August 19, 1975), and filed a notice of deposition (September 17, 1975). When no further action was taken, the intervenors filed a motion to dismiss on December 29, 1977, which was granted "with prejudice" on March 24, 1978. On appeal, plaintiffs seek to have the district court's decision reversed and the case remanded for a determination on the merits or, in the alternative, a dismissal without prejudice.
The statute 2 we are called upon to interpret contains the following provision:
An action to review a decision of the state engineer may be dismissed upon the application of any of the parties upon the grounds provided in Rule 41 of the Utah Rules of Civil Procedure for the dismissal of actions generally and for failure to prosecute such action with diligence. For the purpose of this section failure to prosecute a suit to final judgment within two years after it is filed, or, if an appeal is taken to the Supreme Court within three years after the filing of the suit, shall constitute lack of diligence. All suits heretofore or hereafter commenced must be dismissed after ten days' notice by regular mail to the plaintiff, unless such suits are or were prosecuted to final judgment within the time specified above; . . . .
The first sentence of the above-quoted provision gives the court discretion to dismiss an action upon the grounds of Rule 41 generally, including failure to prosecute with diligence. However, if over two years have elapsed since the filing of the action, a plaintiff has failed to prosecute with diligence as a matter of law and the court Must dismiss the action. 3 This Court has clearly ruled upon the mandatory nature of this provision. In Dansie v. Lambert 4 the Court made the following observation:
If plaintiff should contend that the statute is not mandatory, then in addition to other authorities unnecessary to cite here, this court, in a very recent case, Herr v. Salt Lake County, 525 P.2d 728 (Utah), 1974, and cases therein mentioned, seem to be quite dispositive as to any interpretation of the words 'shall' and 'must' used in the statute here (73-3-15), as being anything but mandatory, and not discretionary.
The reasons for the mandatory nature of the dismissal are also articulated in Dansie 5 as follows:
Some may not approve the legislation, subject of this case, but in substance and effect it is nothing more nor less than a limitations statute, which may be displeasing to one who is its victim, but which like other similar statutes is one of repose, designed to put a time barrier against litigation, in determining the precious water rights in this arid state. . . .
From the pleadings it is clear that plaintiffs have failed to prosecute the suit to final judgment within two years after it was filed, and the dismissal was therefore proper.
Plaintiff's argument that the trial court abused its discretion in dismissing the action with prejudice rather than without prejudice is without merit. To dismiss without prejudice is to give a party an additional one year within which to commence a new action 6 and two more years within which to prosecute the new action to final judgment. Such a result is contrary to the whole tenor of the statute and hence, the dismissal Must be with prejudice. The provision that an action to review the State Engineer's decision Shall be dismissed if not filed within...
To continue reading
Request your trial
-
Western Water, LLC v. Olds
...processes completely beyond their control. See In re Marriage of Gonzalez, 2000 UT 28, ¶ 24, 1 P.3d 1074; Provo City v. Hansen, 601 P.2d 141, 144 (Utah 1979) (Crockett, J., concurring). concerns regarding section 73-3-15 arose because we could foresee this court being faced with the untenab......
-
Pugh v. Draper City
...in this and other jurisdictions." Bd. of Educ. v. Salt Lake County, 659 P.2d 1030, 1033 (Utah 1983); see also Provo City v. Hansen, 601 P.2d 141, 143 (Utah 1979) (indicating that in Utah Code section 73-3-15, the words "shall" and "must" are mandatory and not discretionary). Ms. Pugh, howev......
-
Wilson v. Lambert
...v. Utah State Land Board, 26 Utah 2d 100, 485 P.2d 1035 (1971); Taft v. Glade, 114 Utah 435, 201 P.2d 285 (1948).6 See Provo City v. Hansen, Utah, 601 P.2d 141 (1979).7 Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 734 (1962); Taub v. Hale, 355 F.2d 201 (2nd Cir., 1966).......
-
Jensen v. Morgan, 900232
...to bring the matter to the attention of the trial judge." Id.; accord Dansie v. Lambert, 542 P.2d 742 (Utah 1975); Provo City v. Hansen, 601 P.2d 141 (Utah 1979). In the instant case, Jensen did not file a notice of readiness for trial until eleven months after the case was filed. Reasonabl......
-
Update on Utah Caselaw Relating to Water Rights
...had previously upheld two other dismissals under that section. See, Dansie v. Lambert, 542 P.2d 742 (Utah 1975) and Provo City v. Hansen, 601 P.2d 141 (Utah 1979). In this case, Appellant argued that he had requested a trial date in advance of the two-year deadline, but the trial court admi......