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Boston v. Buchanan12/23/2003
of discretion standard includes an appellate review of both issues of law and fact. Christian v. Gray, 2003 OK 10, 43, 65 P.3d 591, 608. An "issue of law" refers to those legal principles used to determine the correctness of the trial court's decision on appellate review. Christian, 2003 OK 10 at 45, 65 P.3d at 609.
One issue of law involves the often-stated public policy that legal controversies should be decided upon their merits. For example, when discussing default judgments we said the following:
While it is true that diligence of litigants in attending to their matters pending in the courts is of importance, and while it is a significant function of the courts that the litigation before them be determined and disposed of as rapidly as possible, it is also important that all litigants be given a reasonable opportunity to have their day in court, and to have their rights and liberties tried upon the merits. The latter is and should be the primary right of the parties and duty of the courts.
Beck v. Jarrett, 1961 OK 162, 363 P.2d 215, 218.
We have also emphasized the public policy that encourages actions being tried on their merits when reviewing a judgment dismissing an action for delay in service of process. Fischer v. Baptist Health Care of Oklahoma, 2000 OK 91, 7-8, 14 P.3d 1292, 1293 - 1294. In Campbell v. Pharr, 1995 OK CIV APP 153, 916 P.2d 266, (published by Order of Court of Civil Appeals), that court noted Beck and discussed opinions from Arizona and Washington involving dismissals for lack of prosecution and trial court proceedings for vacating those dismissals.
In Gorman v. City of Phoenix, 152 Ariz. 179, 731 P.2d 74 (1987), the court explained the purpose of its rule for dismissing cases when certain litigation procedures were not timely performed:
Uniform Rule V should be used to dispose of abandoned cases and to encourage litigants to resolve their disputes quickly. It should not be used to trap the unwary or the momentarily negligent. The purpose of Uniform Rule V(e) is procedural, not substantive; the rule is merely "a convenient administrative practice" designed to rid court calendars of inactive or abandoned cases and to prod the judge and the attorneys involved to bring cases to trial as quickly as possible.
Gorman, 731 P.2d at 78.
In Vaughn v. Chung, 119 Wash.2d 273, 830 P.2d 668 (1992), (en banc), that court explained that an administrative provision was designed to purge dormant cases from court dockets, and secondarily, to protect litigants from dilatory counsel. Id. 830 P.2d at 670.
Beck states that a party should not be denied a reasonable opportunity to have his or her case decided on the merits. Courts must construe Rule 9(b) consistent with that opportunity. Campbell, Gorman, and Vaughn indicate that a dismissal for failure to prosecute should not be used against the momentarily negligent, but used to prod attorneys to bring cases to trial and dismiss the truly dormant cases. We agree that Rule 9(b) should not be used against the momentarily negligent.
Rule 9(b) places a burden upon the party resisting dismissal to show "good cause" for not dismissing a case. First, in an effort to show that the delay was "momentarily" and not perpetual, Plaintiffs point to a motion to enter the cause on the jury docket that was filed after the court's notice but prior to dismissal. Secondly, they point to illness on the part of both Plaintiffs, and they allege that this hampered discovery. Third, they state that they were not given notice of the standard of conduct required prior to a court exercising its inherent powers and issuing a notice of dismiss
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