Swenson v. Sanborn County Farmers Union Oil Co.

• Decision Date: 12 January 1999
• Docket Number: No. 20444,20444
• Citation: 594 N.W.2d 339,1999 SD 61
• Parties: Doug SWENSON and Dan Swenson, Plaintiffs and Appellants, v. SANBORN COUNTY FARMERS UNION OIL COMPANY, a South Dakota Corporation, and Cenex/Land O'Lakes Agronomy Company, a Minnesota Corporation, Defendants and Appellees, v. Miles, Inc., an Indiana Corporation, f/k/a Mobay, Corp., Third Pary Defendants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 339

594 N.W.2d 339

1999 SD 61

Doug SWENSON and Dan Swenson, Plaintiffs and Appellants, v. SANBORN COUNTY FARMERS UNION OIL COMPANY, a South Dakota

Corporation, and Cenex/Land O'Lakes Agronomy

Company, a Minnesota Corporation, Defendants and Appellees, v. Miles, Inc., an Indiana Corporation, f/k/a Mobay, Corp., Third Pary Defendants.

No. 20444.

Supreme Court of South Dakota.

Considered on Briefs Jan. 12, 1999.

Decided May 19, 1999.

Chan. B. Masselink of Samp Law Firm, Sioux Falls, for plaintiffs and appellants.

Kristine L. Kreiter of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendants and appellees.

DOBBERPUHL, Circuit Judge.

¶1 This matter arose in 1994 as an action by Doug and Dan Swenson (Swensons) seeking damages from Sanborn County Farmers Union Oil Company and Cenex/Land O'Lakes Agronomy Company (Companies) for alleged ineffective applications of herbicide to Swensons' fields. After a period of initial discovery, Companies moved for dismissal for failure to prosecute pursuant to SDCL 15-6-41(b) and SDCL 15-11-11. The trial court granted Companies' motion and dismissed the matter. We reverse and remand.

FACTS

¶2 Swensons contacted Sanborn County Farmers Union Company (Sanborn) in the spring of 1991 regarding herbicide application to 630 acres of their soybean fields which were heavily infested with cockleburs. Various options were discussed and Swensons eventually decided on a dual application of Treflan/Sencore. Swensons purchased the chemicals from Sanborn and Sanborn employees made two applications on Swensons' fields, one before planting the soybeans and one following planting.

¶3 Once the soybeans emerged and grew, Swensons noticed that cockleburs continued to grow in some areas of the field. Sanborn arranged for an aerial spraying of the infected portions of the field with the chemical Basagram in order to alleviate the continuing cocklebur problem. Following the application when the fields were harvested, Swensons were unsatisfied with the yield of the crop and alleged the herbicides were ineffectively applied to exterminate the cocklebur infestation.

¶4 On April 15, 1994, Swensons brought suit against Sanborn and the supplier of the herbicides, Cenex/Land O'Lakes Agronomy Co. (Cenex), by filing a summons and complaint in circuit court. The complaint alleging negligence, breach of express and implied warranties, and strict negligence on the part of Companies due to their respective handling and application of the herbicides to Swensons' fields. Companies filed an answer denying the allegations and asserting the affirmative defenses of contributory negligence, assumption of the risk, failure to mitigate damages, preemption by federal law, and effects of weather conditions beyond their control.

¶5 Companies served a set of interrogatories and request for production of documents and Swensons filed their answers on June 27, 1994. A third party defendant, Miles, Inc., was briefly brought into the action but is not a party to this appeal. ¹

¶6 Several substitutions of Swensons' counsel were made during the course of this action. On September 13, 1994, Michael L. Buffington replaced Douglas T. Loen, both of the Samp Law Firm in Sioux Falls, South Dakota. On July 24, 1995, Harry A. Engberg, also of Samp Law Firm, replaced Mr. Buffington as Swensons' counsel of record.

¶7 Dan Swenson's deposition was taken on August 31, 1995, and Douglas Swenson's deposition occurred on November 28, 1995. On January 24, 1996, Swensons filed a request for admissions, which were answered by Companies by filing on February 14, 1996. This was the last record activity in the case file until November 10, 1997. During the interim period various forms of discovery and communications occurred between the parties and will be detailed below.

¶8 On November 10, 1997, Companies moved to dismiss for lack of prosecution under SDCL 15-11-11 and 15-6-41(b). A hearing was held on December 9, 1997, and the trial court granted the motion on January 7, 1998. Swensons moved for reconsideration, but the trial court took no action on the motion. Swensons appeal the dismissal, raising the following issues:

1. Did the trial court abuse its discretion by granting Companies' motion to dismiss?

2. Did the trial court err as a matter of law by not issuing findings of fact and conclusions of law?

STANDARD OF REVIEW

¶9"Review of a trial court's dismissal of a claim for failure to prosecute is performed under the abuse of discretion standard." London v. Adams, 1998 SD 41, p 12, 578 N.W.2d 145, 148; Devitt v. Hayes, 1996 SD 71, p 7, 551 N.W.2d 298, 300 (citing Annett v. American Honda, 1996 SD 58, p 12, 548 N.W.2d 798, 802; Opp v. Nieuwsma, 458 N.W.2d 352, 356 (S.D.1990); Du-Al Mfg. Co. v. Sioux Falls Constr. Co., 444 N.W.2d 55, 56 (S.D.1989); Schwartzle v. Austin Co., 429 N.W.2d 69, 71 (S.D.1988); Holmoe v. Reuss, 403 N.W.2d 30, 31 (S.D.1987); Duncan v. Pennington County Hous. Auth., 382 N.W.2d 425, 426 (S.D.1986)). When the decision "is not justified by, and clearly against, reason and evidence," the standard is met and the trial court's dismissal must fail. London, 1998 SD 41, p 12, 578 N.W.2d at 148; Devitt, 1996 SD 71, p 7, 551 N.W.2d at 300 (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991); Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981); Root v. Bingham, 26 S.D. 118, 120, 128 N.W. 132, 133 (1910)). We will let the trial court's decision stand if "we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion." Rosen's, Inc., v. Juhnke, 513 N.W.2d 575, 576 (S.D.1994) (citing Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966) (other citations omitted)).

¶10There are several principles of law which guide our review of a dismissal for failure to prosecute:

First, this Court ordinarily will not interfere with the trial court's rulings in these matters. Duncan, 382 N.W.2d at 427; Simkins v. Bechtol, 86 S.D. 187, 189, 192 N.W.2d 731, 732 (1971).

Second, a dismissal of an action for failure to prosecute is an extreme remedy and should be used only when there is an unreasonable and unexplained delay. Opp, 458 N.W.2d at 356; Schwartzle, 429 N.W.2d at 71; Holmoe, 403 N.W.2d at 31; Duncan, 382 N.W.2d at 427; Simkins, 192 N.W.2d at 732; Chicago & Northwestern R. Co. v. Bradbury, 80 S.D. 610, 612, 129 N.W.2d 540, 542 (1964). An unreasonable and unexplained delay has been defined as an omission to do something "which the party might do and might reasonably be expected to do towards vindication or enforcement of his rights." Bradbury, 129 N.W.2d at 542 (citation omitted).

Third, the mere passage of time is not the proper test to determine whether the delay in prosecution warrants dismissal. Opp, 458 N.W.2d at 356; Schwartzle, 429 N.W.2d at 71; Holmoe, 403 N.W.2d at 31; Duncan, 382 N.W.2d at 427; Bradbury, 129 N.W.2d at 542.

Fourth, the plaintiff has the burden to proceed with the action. Du-Al Mfg., 444 N.W.2d at 56; Schwartzle, 429 N.W.2d at 71; Duncan, 382 N.W.2d at 427; Simkins, 192 N.W.2d at 732; Potts, 72 N.W.2d at 925. The defendant need only meet the plaintiff step by step. Holmoe, 403 N.W.2d at 31.

Finally, dismissal of the cause of action for failure to prosecute should be granted when, after considering all the facts and circumstances of the case, the plaintiff can be charged with lack of due diligence in failing to proceed with reasonable promptitude. Opp, 458 N.W.2d at 356; Holmoe, 403 N.W.2d at 31-32; Duncan, 382 N.W.2d at 427; Bradbury, 129 N.W.2d at 542.

Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715-16 (S.D.1995).

DECISION

¶11 The trial court abused its discretion by granting Companies' motion to dismiss for want of prosecution.

¶12 According to the record, Companies moved for dismissal for failure to prosecute under SDCL 15-11-11 and SDCL 15-6-41(b). The trial court granted Companies' motion with a blanket order that did not cite the statutory basis for the grant. We must assume that since Companies' motion moved for dismissal under both statutes the trial court also granted the dismissal under both statutes. ²

a. Dismissal under SDCL 15-11-11

¶13 Under the law applicable at the time the trial court dismissed this action, SDCL 15-11-11 allowed a court to dismiss an action for failure to prosecute when: (a) there has been no activity for one year, and (b) there is no showing of good cause which excuses the inactivity. ³

¶14 "Activity," as used in the previous version of SDCL 15-11-11 has been defined as "record activity," Annett, 1996 SD 58 at p 19, 548 N.W.2d at 803; "last activity as reflected in the file," Holmoe v. Reuss, 403 N.W.2d at 32; "settled record," Holmoe, 403 N.W.2d at 32; and "court record," Du-Al Mfg. Co. v. Sioux Falls Const. Co., 444 N.W.2d at 57 (Sabers, concurring).

¶15 The good cause aspect of SDCL 15-11-11 has been evaluated using the following factors: in light of the circumstances surrounding the case, Annett, 1996 SD 58 at p 22, 548 N.W.2d at 804; prejudice by lack of activity is not necessary, Id.; "a defendant has a duty simply to meet the plaintiffs step-by-step," Dakota Cheese, 525 N.W.2d at 716; and "[g]ood cause for delay requires contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines," Id. (citing Holmoe, 403 N.W.2d at 32).

¶16 We have found the following to not be good cause for delay: communication among a plaintiff and plaintiff's counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiff's failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett, 548 N.W.2d...