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Boston v. Buchanan12/23/2003
ng in the case." Id. 733 P.2d at 395. Twenty-two months elapsed without an additional filing and the trial court declined to dismiss.
Our analysis in Goyne included reasoning that Rule 9(b) was based upon § 1083, and that § 1083 would not support dismissing an action when a motion remained pending for adjudication. Id. 733 P.2d at 395. We affirmed the order declining to dismiss the action, saying that "In this case the motion to vacate remained pending during the two year period and was not subject to dismissal pursuant to Rule 9." Id. 733 P.2d at 395, emphasis added. Thus, if Rule 9(b) was based upon § 1083 and § 1083 would not work as authority for dismissal, Rule 9(b) would also be insufficient authority for a dismissal.
Then in B & M International Trading Co. v. Woodie Ayers Chevrolet, Inc., 1988 OK 133, 765 P.2d 782, we affirmed a dismissal pursuant to Rule 9(b). We noted that motions remained pending and that § 1083 did not apply. However, instead of linking application of Rule 9(b) to the circumstances mentioned in § 1083, as we did in Estate of Goyne, we affirmed the dismissal by separating the application of Rule 9 from § 1083. We said:
Section 1083 directs the court to dismiss without prejudice 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 ..." Since the record here reflects that all of defendant's demurrers, motions to make more definite and certain, and motions to compel more complete answers to interrogatories were pending at the time of the trial court's dismissal, section 1083 does not apply, and the court must exercise its discretion to dismiss under Rule 9(b). Dismissal under that Rule must be without prejudice.
Finding no authority upon which the trial court could dismiss the present action with prejudice, we hold that dismissal under Rule 9(b) was proper, but that such dismissal is to be without prejudice. B & M International Trading Co., 1988 OK 133, 16-17, 765 P.2d at 784, (emphasis added).
We conclude that B & M International Trading Co. is correct.
We have recognized a court's inherent power to dismiss an action because of a party's failure to prosecute an action. Winters By and Through Winters v. City of Oklahoma City, 1987 OK 63, 8-9, 740 P.2d 724, 726. Rule 9 provided, prior to enactment of § 1083, for dismissal upon a party's failure to prosecute an action. When § 1083 was created it also provided for circumstances when an action could be dismissed for a party's failure to prosecute. The parties do not point to any language in § 1083 showing an intent by the Legislature to make § 1083 circumstances, nor those in other statutes, the exclusive grounds for dismissal upon a party's failure to prosecute. We conclude that the first two sentences of Rule 9(b) are authority for a trial court to dismiss an action independent of applying § 1083.
The first two sentences of Rule 9(b) state:
"Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice."
The issue before us today is whether plaintiffs showed "good cause" why the action should not be dismissed.
A trial court adjudication of "good cause" is reviewed on appeal using an abuse of discretion standard. Fischer v. Baptist Health Care of Oklahoma, 2000 OK 91, 6, 14 P.3d 1292, 1293; State v. Vaughn, 2000 OK 63, 25, 11 P.3d 211, 217. An abuse
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