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Boston v. Buchanan12/23/2003
__ P.3d __
This case involves a trial court's dismissal of an action based upon its determination that the action was not diligently prosecuted by Plaintiffs. The primary issue on certiorari is the difference between dismissing an action pursuant to 12 O.S.2001 § 1083, and dismissing an action in the exercise of a trial court's inherent power as set forth in the first two sentences of Rule 9(b) of the Rules for District Courts. The trial court used both the statute and the Rule as authority for dismissing the action. Because § 1083 does not apply in this case, and because the trial court erroneously used the §1083 criteria in applying its inherent power in Rule 9(b), we reverse the judgment of the District Court, and vacate the appellate opinion that affirmed that judgment.
A husband and wife brought a medical malpractice action in the District Court of Oklahoma County in 1995, and some discovery occurred. In November 1997 the action was dismissed because of Plaintiffs' failure to diligently prosecute the action. Plaintiffs re- filed their action in October 1998, and service of process occurred in April 1999. Defendants filed answers in April and May 1999. Interrogatories and requests for production of documents were sent to Plaintiffs in May 1999. Plaintiffs responded in July 1999.
Then on April 3, 2001 the trial court mailed to the parties a notice of intent to dismiss the case "pursuant to Rule 9 of the Rules for District Courts for failure to diligently prosecute this action, as the last action of record in this case occurred on the 15th day of July, 1999." The notice scheduled a hearing for the matter in May 2001. Plaintiffs' attorney filed a motion to enter the cause on a jury docket. Defendants objected to the motion to enter the cause on a jury docket, because there had been "almost two (2) years inactivity in this case", and because the last activity had been plaintiffs responses to Defendants' discovery requests in 1999.
The District Court's order states that the case came on for hearing on the court's Disposition Docket, and that notice was mailed to the parties. The Court then found that the case should be dismissed for failure to diligently prosecute pursuant to Rule 9(b), Rules of the District Courts and/or 12 O.S.2001 § 1083, "whichever is applicable." We first address § 1083.
Section 1083 states as follows:
§ 1083. Actions not at issue and in which no pleadings filed for 1 year--Dismissal Any action which is not at issue and in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year shall be dismissed without prejudice by the court on its own motion after notice to the parties or their attorneys of record; providing, the court may upon written application and for good cause shown, by order in writing allow the action to remain upon its docket.
12 O.S.2001 § 1083, (emphasis added).
Plaintiffs argue that the case was "at issue" and not subject to dismissal pursuant to § 1083. We agree.
In Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, we said that: "A case is at issue for trial setting purposes when the issues are made up or when the defendant has failed to plead within the time allowed by law or by an order of the court." Id. 780 P.2d at 682, citing, 12 O.S.1981 § 666 and Cunningham v. Cunningham, 1977 OK 203, 571 P.2d 839, 841. Issues that are "made up" consist of facts or conclusions of law presented by one party's pleadings, and controverted by the other party's pleadings. 12 O.S.2001 §§ 551, 552. A similar rule is expressed by a Montana court thusly,
It is tru
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