Stoll v. Dow

• Decision Date: 30 December 1986
• Docket Number: No. 8053,8053
• Citation: 731 P.2d 1360,1986 NMCA 134,105 N.M. 316
• Parties: E.M. STOLL (Successor to Western States Collection Company), Plaintiff-Appellant, v. Alfred M. (Red) DOW, Sheriff of Bernalillo County, and Maryland Casualty Company of Baltimore, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1360

731 P.2d 1360

105 N.M. 316

E.M. STOLL (Successor to Western States Collection Company) Plaintiff-Appellant, v. Alfred M. (Red) DOW, Sheriff of Bernalillo County, and Maryland Casualty Company of Baltimore Defendants-Appellees.

No. 8053.

Court of Appeals of New Mexico.

Dec. 30, 1986.

[105 N.M. 317] Dale B. Dilts, Albuquerque, for plaintiff-appellant.

Matthew P. Holt, Edward T. Curran, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for defendants-appellees.

OPINION

HENDLEY, Chief Judge.

This tort appeal has been pending on our docket and ready for submission since January of 1985. In August of 1986, upon the recommendation of and with the assistance of the State Bar of New Mexico, which assistance is greatly appreciated, this Court adopted an experimental plan pursuant to which cases would be assigned to advisory committees of experienced attorneys. Pursuant to our order adopting the plan, once the advisory committee rendered an opinion, that opinion would be served on the parties with an order to show cause why the opinion should not be adopted as the opinion of the Court. The parties would then have the opportunity to submit response memoranda to the Court.

This case was submitted to an advisory committee and the parties were so notified. That committee rendered a unanimous opinion. The parties were notified of the opinion and of their right to submit response memoranda. No response memoranda have been filed and the time for such filing has expired. This Court has considered the transcript and briefs in this case, together with the opinion of the advisory committee. It is the decision of this Court that the opinion of the advisory committee should be adopted, as modified, as follows.

This is an appeal from a dismissal with prejudice of plaintiff's complaint pursuant to NMSA 1978, Civ.P.Rule 41(e) (Repl.Pamp.1980).

Suit was originally filed on October 1, 1969. Subsequently, all then sitting district court judges in the Second Judicial District either recused themselves or were disqualified. On January 13, 1972, the parties stipulated that Judge Edwin Felter of the First Judicial District could hear the case. The Supreme Court entered an order, pursuant to the stipulation, designating Judge Felter to "hear and try" the case. Judge Felter set the case for trial to commence March 9, 1972, and again on June 12, 1972. There is record evidence that a number of subpoenas were issued for trial. In his brief in chief in this Court, plaintiff states: "Plaintiff's attorneys withdrew on this [sic] day of trial in open court." The record contains a withdrawal of plaintiff's attorneys which bears a stamped filing date of June 12, 1972. There is a handwritten note on the withdrawal, over what purports to be Judge Felter's signature, that the withdrawal was filed in open court on the same day. On October 9, 1973, new counsel for plaintiff entered his appearance, and on the same day a motion for trial setting was filed by plaintiff.

On May 13, 1976, Judge Felter signed an order reviving the action against the estate of Defendant Dow, who had died in January 1976. On January 11, 1984, present counsel for Maryland Casualty Company (Maryland Casualty) entered their appearance, and on January 12, 1984, filed a motion to dismiss pursuant to Civ.P. Rule 41(e).

In order to get a hearing on the motion to dismiss, Maryland Casualty had to obtain a writ of superintending control from the New Mexico Supreme Court directing the presiding judge of the Second Judicial District to designate a judge of that district to hear the motion.

The hearing on the motion was held before Judge Sitterly on June 11, 1984. In response to plaintiff's counsel's statements at the hearing that plaintiff could not get a judge to try the case, Judge Sitterly said, "But it's the plaintiff's responsibility [to get a judge]. The plaintiff should have filed something a long time ago and gotten a judge. Anybody can get a judge from the Supreme Court."

Plaintiff appeals from the dismissal of his complaint with prejudice pursuant to Civ.P.Rule 41(e). Plaintiff basically makes two arguments. First, plaintiff argues that the motion for trial setting filed on October 9, 1973, indefinitely tolled the Civ.P.Rule 41(e) time period. Second, plaintiff makes the following argument: "The Plaintiff submits that it was impossible for him to get this case to trial and this is demonstrated by the lengths to which opposing counsel had to go to get his motion heard."

We affirm.

In applicable part, Civ.P.Rule 41(e) provides:

(e) Dismissal of action with prejudice.

(1) In any civil action * * * when it shall be made to appear to the court that the plaintiff therein * * * has failed to take any action to bring such action or proceeding to its final determination for a period of at least three years after the filing of said action or proceeding unless a written stipulation signed by all parties to said action or proceeding has been filed suspending or postponing final action therein beyond three years, any party to such action or proceeding may have the same dismissed with prejudice * * *.

In State ex rel. Reynolds v. Molybdenum Corp. of America, 83 N.M. 690, 496 P.2d 1086 (1972), the Supreme Court stated:

The trial court should determine, upon the basis of the court record and the matters presented at the hearing, whether such action has been timely taken by the plaintiff * * * and, if not, whether he has been excusably prevented from taking such action. In making this determination, the discretion of the trial court will be upheld on appeal except for a clear abuse thereof.

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