Spiegelman v. Gold Dust Texaco

Decision Date08 September 1975
Docket NumberNo. 7603,7603
Citation539 P.2d 1216,91 Nev. 542
PartiesNancy SPIEGELMAN et al., Appellants, v. GOLD DUST TEXACO et al., Respondents.
CourtNevada Supreme Court
OPINION

MOWBRAY, Justice.

This is an appeal by Plaintiffs Nancy Spiegelman, Scott Spiegelman, Tracy Spiegelman, Steve Spiegelman, and Jack Spiegelman, minors, by and through their guardian ad litem, Aaron Spiegelman, and Aaron Spiegelman, individually, from a judgment entered in favor of Defendants Texaco, Inc., and Ralph Klatt and James E Scheeler, doing business as Gold Dust Texaco, following on order granting defendants' motion to dismiss the complaint with prejudice under NRCP 41(e).

Plaintiffs filed their complaint on November 25, 1969, seeking damages for wrongful death and personal injuries that resulted from an automobile accident. The plaintiffs alleged, in substance, that defendants performed work on a 1967 Ford station wagon prior to the accident, and that as part of this work the defendants removed the left rear wheel of the vehicle but replaced it in a negligent and careless manner. As a direct and proximate result of this negligence, plaintiffs allege that the wheel came off, the vehicle went out of control, and it collided head on with another automobile. Gaye Spiegelman, mother of the five surviving minor plaintiffs, was killed; three other children, David, Sylvia, and Mark Spiegelman, were killed; and four other children who were in the automobile suffered severe injuries. Discovery was actively pursued for about 6 months after the complaint was filed. Interrogatories and requests for admissions were served and answered. In April 1970 the depositions of Defendants Ralph Klatt and James Scheeler were taken. There was no further activity in the case, however, until January 31, 1973, when plaintiffs filed a substitution of attorneys, naming Frank A. Schreck as their counsel. On February 12, 1973, plaintiffs served interrogatories on Defendant Texaco; they were answered on April 10, 1973. On May 11, 1973, plaintiffs filed a demand for jury trial, together with a note for trial docket, requesting that the case be set for trial.

On May 24, 1973, plaintiffs filed a motion for leave to take a number of depositions, together with the affidavit of Mr. Schreck stating that counsel for Defendants James and Ralph Klatt, James Scheeler, and Gold Dust Texaco 'does not object to further discovery.' The record does not reflect whether counsel for Texaco, Inc., objected to the taking of the depositions, but Texaco did not make any motion to dismiss the case at that point for lack of prosecution. On June 4, 1973, Judge Leonard I. Gang granted plaintiffs' motion; and plaintiffs then filed and served notice of taking depositions of T. V. Rossiter, L. W. Slover, T. L. Carey, and Dwight Pilger, scheduling them for July 17 and 18, 1973. The depositions of Mr. Slover (sales representative of Texaco, Inc.), Mr. Rossiter (former sales representative of Texaco, Inc.), and Mr. Pilger (sales supervisor of Texaco, Inc.) were taken on those dates. Mr. Carey ndistrict sales manager of Texaco) was served with a new notice on August 13, and his deposition was eventually taken on October 19, 1973.

On August 7, 1973, Texaco served notice to take depositions of plaintiffs. Plaintiffs, residing in Santa Rosa, California, traveled to Las Vegas, and on August 30, 1973, their depositions were taken. Requests to produce various items of evidence were made in August 1973 by both Texaco and plaintiffs. In November, Texaco initiated further discovery and noticed the depositions of Elwyn Dennis Hanes and Marvin Paul Brody. In the meantime, supplemental interrogatories propounded by plaintiffs were answered by Texaco October 25, 1973. On November 26, 1973, plaintiffs noticed the depositions of William Linn (manager of advertising and sales promotion), Kerryn King (senior vice president, public affairs), and Armon M. Card (vice president, sales department), to be taken at Texaco's office in New York City on January 14, 1974; and plaintiffs had a commission issued for the taking of these depositions.

The case had been set for trial on January 21, 1974. However, since additional discovery was desired by both sides, and counsel who would be trying the case on behalf of plaintiffs had another trial date scheduled for that time, plaintiffs filed, on November 21, 1973, a motion to continue the trial date to April 1974. The court granted a continuance until May 13, 1974, but it also granted defendants leave to file a motion to dismiss for lack of prosecution. Counsel for Texaco meanwhile again noticed the deposition of Mr. Brody, scheduling it for December 13, 1973. Following the court's action, Texaco and the remaining defendants filed motions to dismiss. Judge Carl J. Christensen granted these motions and ordered the action dismissed with prejudice on December 13, 1973. Judgments were thereupon entered on the order, and plaintiffs have appealed.

1. Defendants waited until December 1973 to seek dismissal of this action. By that time, a date had been set for trial, and plaintiffs had diligently pursued their case for approximately a year. From January 31, 1973, when Mr. Schreck became plaintiffs' counsel of record, until the time of dismissal, extensive discovery was actively carried on by both plaintiffs and defendants. It was not until plaintiffs' counsel requested a continuance to facilitate further discovery by both sides and to alleviate a conflict that defendants made any effort to seek dismissal for lack of prosecution. When the motion to dismiss was granted, there was in fact no lack of prosecution.

2. The issue before us, then, is whether, as a matter of law, the trial court abused its discretion in dismissing this action. In Harris v. Harris, 65 Nev. 342, 350, 196 P.2d 402, 406 (1948), this court stated:

'. . . The only limitation upon the discretionary power of the court to dismiss a cause for delay in its prosecution is that it must not be abused. (Citation omitted.)

'Each particular case presents its own peculiar features, and no iron clad rule can justly be devised applicable alike to all (Citations omitted.)

'. . . The discretion to be exercised, under the circumstances of the particular case, is a legal discretion, to be exercised in conformity with the spirit of the law and in such a manner as to subserve and not to impede or defeat the ends of substantial justice. (Citation omitted.)'

3. The spirit of the law is that matters be heard on their merits; where a case is presently being prosecuted with diligence, it serves the interests of justice...

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7 cases
  • Lake Meredith Reservoir Co. v. Amity Mut. Irr. Co.
    • United States
    • Colorado Supreme Court
    • April 29, 1985
    ...v. McClaine, 261 Ind. 60, 300 N.E.2d 342 (1973); Brymerski v. City of Great Falls, 636 P.2d 846 (Mont.1981); Spiegelman v. Gold Dust Texaco, 91 Nev. 542, 539 P.2d 1216 (1975); Martin v. Leonard Motor-El Paso, 75 N.M. 219, 402 P.2d 954 (1965). See also 2B W. Barron & A. Holtzoff, Federal Pra......
  • Massey v. Sunrise Hosp.
    • United States
    • Nevada Supreme Court
    • September 4, 1986
    ...is filed by the clerk of the trial court. The spirit of the law contemplates a trial on the merits. E.g., Spiegelman v. Gold Dust Texaco, 91 Nev. 542, 545, 539 P.2d 1216, 1218 (1975). Balanced against this policy, however, is the desire to end litigation after a reasonable amount of time. B......
  • Brymerski v. City of Great Falls
    • United States
    • Montana Supreme Court
    • November 25, 1981
    ...1971), 488 P.2d 1026; Farber, supra; Ayers v. D. F. Quillen & Sons, Inc. (1963), 55 Del. 481, 188 A.2d 510; Spiegelman v. Gold Dust Texaco (1975), 91 Nev. 542, 539 P.2d 1216; Rorie v. Avenue Shipping Co. (Tex.Civ.App.1967), 414 S.W.2d If a plaintiff has actively resumed the prosecution of a......
  • Auto Fair, Inc. v. Spiegelman
    • United States
    • Nevada Supreme Court
    • December 6, 1976
    ...San Francisco, Cal., for respondent. OPINION MOWBRAY, Justice: The facts that led to this litigation appear in Spiegelman v. Gold Dust Texaco, 91 Nev. 542, 539 P.2d 1216 (1975), where we reversed a district court order and remanded this case for trial on its merits. After remand, the case w......
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