State ex rel. Reynolds v. Molybdenum Corp. of America

Decision Date05 May 1972
Docket NumberNo. 9358,9358
Citation1972 NMSC 27,496 P.2d 1086,83 N.M. 690
PartiesSTATE of New Mexico ex rel. S. E. REYNOLDS, State Engineer, Plaintiff-Appellant and Cross-Appellee, v. MOLYBDENUM CORPORATION OF AMERICA, a Delaware Corporation, Defendant-Appellee and Cross-Appellant.
CourtNew Mexico Supreme Court
OPINION

OMAN, Justice.

This is a suit in which plaintiff sought an injunction against defendant. The trial court granted defendant's motion to dismiss pursuant to Rule 41(e), Rules of Civil Procedure for the District Courts (§ 21--1--1(41)(e), N.M.S.A.1953 (Repl.Vol. 4, 1970)). Plaintiff appealed from the order dismissing its complaint with prejudice. Defendant cross-appealed on the ground that, notwithstanding any error which might have been committed against plaintiff, the order should be affirmed. Supreme Court Rule 17(2) (§ 21--2--1(17)(2), N.M.S.A.1953 (Repl.Vol. 4, (1970)). We reverse.

The record shows the following actions to have been taken:

(1) Complaint was filed May 24, 1968.

(2) Answer was filed June 24, 1968. Substantial and complicated legal defenses to the complaint were raised by the answer.

(3) On May 25, 1971, defendant filed its motion to dismiss pursuant to Rule 41(e), supra.

(4) On July 13, 1971, defendant's motion to dismiss came on for hearing. At this hearing it was pointed out to the present district judge that on May 15, 1969, a pre-trial conference had been conducted and a hearing on the legal issues held by the former district judge who resigned on June 30, 1971. For some unexplained reason the former district judge had made no record of the pre-trial conference and hearing, and had failed to rule upon defendant's legal defenses. The present district judge announced he would permit plaintiff to file of record matters necessary to demonstrate that a pre-trial conference and hearing had been held on May 15, 1969, matters which had been presented to the court at that hearing, and copies of the briefs which had been submitted by the parties in support of their respective positions. The present district judge did, however, feel compelled to sustain defendant's motion for dismissal and so announced.

(5) On July 22, 1971, plaintiff filed an affidavit by one of its former attorneys who had represented plaintiff at the pre-trial conference and hearing. Along with this affidavit there was filed a copy of defendant's 'Trial Brief on Legal Defenses,' which defendant had submitted to the court on May 15, 1969 at the pretrial conference and hearing; a copy of 'Plaintiff's Trial Brief on Legal Defenses,' which was subsequently submitted with the court's permission; and 'Defendant's Reply Brief on Legal Defenses,' which was submitted to the court shortly thereafter.

(6) On July 26, 1971, defendant filed a motion to strike the affidavit and copies of briefs on the grounds that they were '* * * not part of the record or the court file herein at the time of * * *' the hearing on defendant's motion to dismiss under Rule 41(e), supra, which, as shown above, was held on July 13, 1971.

(7) On July 30, 1971, the court entered an order denying defendant's motion to strike the affidavit and briefs.

(8) On August 2, 1971, defendant filed a 'Statement Controverting Affidavit of Peter B. Shoenfeld' (attorney for plaintiff whose affidavit had been filed on July 22, 1971). The controversy between Mr. Shoenfeld's affidavit and defendant's statement relates to whether or not the parties had implicitly agreed that all issues raised by the pleadings had been presented to the court on May 15, 1969, at the pre-trial conference and hearing on legal defenses and in their briefs. Attached to defendant's statement were:

(a) A letter dated August 23, 1968 from Mr. Shoenfeld addressed to the district judge advising that counsel for both parties had conferred and deemed it advisable that a pre-trial conference be held to narrow and familiarize the court with the issues, and advising that defendant wished to argue the legal defenses raised in its answer.

(b) A letter dated October 17, 1968 from the attorney for defendant addressed to the district judge referring to a discussion by counsel for both sides with the court concerning the possible settlement of the legal issues at a pre-trial conference, and urging an early setting at any place at the convenience of the court because of the utmost importance to defendant of getting an early determination of these issues.

(c) A letter dated November 25, 1968 from the attorney for defendant addressed to the district judge referring to the October 17 letter concerning a pre-trial conference and the absence of any response thereto from the court, and reminding and explaining to the court the need for an early disposition of the legal issues and expressing a belief that these issues could be determined at a pre-trial conference.

(d) A letter dated May 21, 1969, from plaintiff's attorney addressed to the district judge requesting to be excused from attending the calling of the docket on June 2, 1969, since the defendant had moved to dismiss the complaint for failure to state a claim, and a decision of the court on that motion was expected after the submission to the court on or before June 15, 1969, of plaintiff's brief.

(9) On August 2, 1971, the court entered the order dismissing the plaintiff's complaint with prejudice under Rule 41(e), supra. It is apparent from the court's findings that he considered only the complaint, answer and defendant's motion to dismiss under Rule 41(e), supra, because these were the only relevant matters in 'the court file in this cause' at the time of the filing of defendant's motion on May 25, 1971, as shown above.

That portion of Rule 41(e) here applicable provides:

'(1) In any civil action or proceeding pending in any district court in this state, including actions in which a jury trial has been demanded, when it shall be made to appear to the court that the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least three (3) years after the filing of said action or proceeding or of such cross-complaint unless a written stipulation signed by all parties to said action or proceeding has been filed suspending or postponing final action therein beyond three (3) years, any party to such action or proceeding may have the same dismissed with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint or cross-complaint by filing in such pending action or proceeding a written motion moving the dismissal thereof with prejudice.'

As shown by the above recited actions reflected by the record in this cause, there was no stipulation filed suspending or postponing final action beyond three years. Thus, the question presented is whether it was '* * * made to appear to the (district) court that the plaintiff * * * failed to take any action to bring (this cause) to its final determination for a period of at least three (3) years after the filing * * *' of its complaint on May 24, 1968.

The actions recited in Paragraphs numbered 4, 5 and 8 above, except for the hearing on July 13, 1971, the filing of the affidavit on July 22, 1971 and the filing of the statement on August 2, 1971, would seem clearly to be actions taken to bring the suit to its final conclusion. These actions, insofar as plaintiff was concerned, were: (1) The writing of the letter of August 23, 1968 to the district judge suggesting and requesting a pre-trial conference and hearing on defendant's legal defenses; (2) The participation in the pre-trial conference and hearing on defendant's legal defenses on May 15, 1969; (3) The subsequent preparation and furnishing to the court of 'Plaintiff's Trial Brief on Legal Defenses'; and (4) Conferences with defendant's counsel for the purpose of getting an early disposition of at least defendant's legal defenses, which was of great importance to defendant.

The failures of the trial court to make a record of the pre-trial conference and hearing and to decide the legal issues presented to the court by oral arguments and the briefs are not chargeable to either party. Both parties had clearly taken actions to bring the suit to its final conclusion long before May 25, 1971. However, a record of these actions did not appear in the court file as of May 25, 1971, and the present district judge, who entered the order of dismissal on August 2, 1971, obviously felt compelled to do so in accordance with the very narrow interpretations that this court has given to the above quoted portion of Rule 41(e), supra,--which interpretations at times appear to us to have been somewhat inconsistent--and particularly to that portion of the rule which provides '* * * when it shall be made to appear to the court (district court) that the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination. * * *'

The multitudinous problems with the application of this rule, the rule's productivity of disputes and consequent appeals, and, in our opinion, the many injustices worked by the application of this court's constructions of the rule seem to have had their principal beginning with the decision in Ringle Development Corporation v. Chavez, 51 N.M. 156, 180 P.2d 790 (1947). In that case it was held the provisions for dismissal with prejudice are mandatory except when one of the following appears:

(1) '* * * the time is tolled by statute * * *,' (2) '* * * process has not been served because of inability to execute it on account of the absence of the defendant from the state...

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