Wagner v. McDonald

• Decision Date: 17 December 1973
• Docket Number: No. 1931--I,1931--I
• Citation: 516 P.2d 1051,10 Wn.App. 213
• Parties: William WAGNER, as Guardian ad Litem for William W. Wagner, his minor son, Appellant, v. Mrs. Lucile F. McDONALD and John Doe McDonald, her husband, and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

Page 213

10 Wn.App. 213

516 P.2d 1051

William WAGNER, as Guardian ad Litem for William W. Wagner, his minor son, Appellant, v. Mrs. Lucile F. McDONALD and John Doe McDonald, her husband, and the marital community composed thereof, Respondents.

No. 1931--I.

Court of Appeals of Washington, Division 1.

Dec. 17, 1973.

Senn & Treadwell, Charles L. Senn, Seattle, for appellant.

Martin, Niemi, Burch & Mentele, Susan F. French, Seattle, for respondents.

SWANSON, Chief Judge.

Is an order dismissing an action with prejudice for plaintiff's failure to appear at the time of trial res judicata and thus a bar to a subsequent suit based upon the same claim? The trial court ruled that such a prior order was res judicata, denied plaintiff's motion to vacate or modify the order, and dismissed plaintiff's personal injury action. Plaintiff William Wagner, as guardian ad litem for his minor child, appeals.

The operative facts for purposes of this appeal are as follows: William Wagner commenced an action to recover damages for injuries suffered by his minor child who was struck by an automobile allegedly driven by defendant Lucile F. McDonald. Approximately 3 weeks prior to the regularly scheduled trial date, plaintiff's attorneys were permitted to withdraw due to a lack of communication and cooperation on the part of the plaintiff. Nevertheless, the case came on for trial on January 21, 1971 in King County Superior Court. The plaintiff failed to appear, and an order was entered dismissing his complaint with prejudice. On July 26, 1972, Wagner brought a second cause of action virtually identical to the first. The defendant moved to dismiss plaintiff's second complaint on the basis that the same claim for damages had been dismissed previously with prejudice and was therefore res judicata. Plaintiff then petitioned the court to consolidate the two causes and to vacate the January 21, 1971 order dismissing his first complaint. The trial court consolidated the two actions but denied the motion to vacate or modify the prior judgment of dismissal with prejudice and also dismissed plaintiff's second complaint with prejudice. This appeal followed.

Plaintiff assigns error to both the order dismissing his second complaint and to the order denying his motion to set aside or modify the January 21, 1971 judgment of dismissal with prejudice.

Plaintiff's argument as to the first claim of error rests upon the contention that because there was no adjudication of the cause of action on the merits, the trial court had no authority to enter the order of January 21, 1971, dismissing his first complaint with prejudice despite his failure to appear at the time of trial. Therefore, plaintiff contends that the doctrine of res judicata is not available to the defendant to bar the second complaint. In this context, the plaintiff, relying primarily upon Luisi Truck Lines, Inc. v. Washington Utilities & Transp. Comm'n, 72 Wash.2d 887, 435 P.2d 654 (1967), asserts that the doctrine of collateral estoppel is inapplicable without proof of determination in the prior action of the same facts or issues claimed to be conclusive on the parties in the second action.

The defendant generally accepts the correctness of plaintiff's statement of the law dealing with the defense of res judicata, but contends the common law rules relied upon by plaintiff have been abrogated by the adoption in 1967 of Civil Rules for Superior Court, primarily CR 40 and CR 41. Both parties substantially agree that unless the statutes or court rules accord res judicata effect to a dismissal for nonappearance at trial, such a prior dismissal is not res judicata. In this regard, plaintiff argues that RCW 4.56.120, which permits a nonsuit if the plaintiff fails to appear at the time of trial, and the holding in Peterson v. Parker, 151 Wash. 392, 275 P. 729 (1929), where the court interpreted Rem.Comp.Stat. § 408, a statute virtually identical to RCW 4.56.120, make it clear that the common law rules still govern dismissals in the state of Washington. Our Supreme Court in Peterson took the position that any abandonment of an action before final submission for judgment could not amount to an adjudication of the case upon the merits and consequently could not result in a dismissal of the action with prejudice. However, neither party has directed us to a decision by any appellate court in this state, nor has our search revealed any, which has discussed the impact of CR 40 or CR 41 relative to the power of a superior court judge to dismiss an action with prejudice when the plaintiff fails to appear for trial.

In analyzing this question, it must be observed at the outset that to the extent our interpretation of CR 40 and CR 41 might conflict with RCW 4.56.120, the statute has been superseded by the Civil Rules for Superior Courts, and such rules control. State ex rel. Foster-Wyman Lbr. Co. v. Superior Court, 148 Wash. 1, 267 P. 770 (1928); RCW 2.04.200. Civil Rule 40(d) states:

When a cause is set and called for trial, it shall be tried or dismissed, unless good cause is shown for a continuance. The court may in a proper case, and upon terms, reset the same.

Civil Rule 41(b)(3) states in part, in discussing the effect of an involuntary dismissal:

Unless the court in its order for dismissal otherwise specifies .. . and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Thus, inasmuch as a dismissal under CR 40(d), which is required when a cause is neither tried, continued, or reset, is not a dismissal provided for in CR 41, it operates pursuant to Cr 41(b)(3) as an adjudication upon the merits, with certain exceptions not applicable to the case at bench. To summarize, when a case set for trial is regularly called for trial, CR 40(d) clearly requires final disposition, a continuance upon a proper showing, or resetting. Civil Rule 41(b)(3) makes it clear that an involuntary dismissal not provided for in CR 41, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party, operates as an adjudication upon the merits unless otherwise specified by the trial court.

In light of the foregoing analysis, it is notable that the federal rule comparable to CR 41(b)(3), Fed.R.Civ.P. 41(b), ¹ has been interpreted to support a dismissal with prejudice by the trial court acting sua sponte where plaintiff failed to appear on the date set for trial. Holcomb v. Holcomb, 93 U.S.App.D.C. 242, 209 F.2d 794 (1954). Moreover, the Supreme Court in Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), sustained a dismissal by the district court sua sponte for want of prosecution and stated at 629, 82 S.Ct. at 1388:

The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.

(Footnotes omitted.)

The court rested its decision upon the inherent power of the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases and held that Rule 41(b) in no way restricted such discretionary authority. See Bishop v. Hamlet, 58 Wash.2d 911, 365 P.2d 600 (1961); State ex rel. Dawson v. Superior Court, 16 Wash.2d 300, 133 P.2d 285 (1943). We subscribe to the view expressed in Link that, absent...