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Boston v. Buchanan12/23/2003
al, and that because of this lack of notice the trial court was required to issue a warning prior to its notice, or allow them to cure the offense by modifying their litigation conduct after the notice was issued. Fourth, they argue that the dismissal will result in a dismissal with prejudice, although the face of the order states that it is without prejudice. Fifth, they point to the trial court's alleged improper use of a prior action in determining whether the present action was timely prosecuted. We reverse the trial court on its use of § 1083 and Rule 9(b), and need not address these grounds as framed by Plaintiffs, except as they relate to § 1083 and Rule 9(b) and as their resolution is necessary for appellate adjudication herein.
Plaintiffs filed a motion to enter the cause on the jury docket. The trial court declined to consider the motion. In Beck we said that:
The courts should always be loath to deny a determination of a case upon its merits by reason of the actual or supposed fault of an attorney and one of the parties litigant. Especially is this true when issue of fact showing a cause of action of apparent merit on the part of the plaintiff and a defense of contended merit on the part of the defendants has been joined by appropriate pleadings.
Beck v. Jarrett, 363 P.2d at 218.
When the trial court stated that it would not consider the motion it was concluding, for the purpose of Rule 9(b), it simply did not matter if one or more of the parties was prepared to advance the action for trial on the merits.
The Rules for District Courts provide that a scheduling order should be issued "as soon as feasible after the case is at issue." 12 O.S.2001 Ch.2, App. 1, Rule 5(C). Local Rule 17 of the Seventh Judicial District states that the trial judge may enter a scheduling order on the date the motion to enter is heard. Defendants objected to the motion to enter the action on the jury docket. But they did not argue that the case was premature for a motion to enter or a scheduling order. In other words, it appears that the motion to enter and resulting scheduling order would have been proper but for the trial court's sua sponte dismissal notice.
Clearly, lawyers should not calendar litigation dates based upon a disposition docket or a court's sua sponte notice of dismissal. These two actions taken by a trial court are not alternatives to a lawyer's intra-office case-tracking system. On the other hand, a trial court should consider both the public policy of having cases tried on their merits and a party's intent to advance a case by a motion to enter when the trial court seeks to dismiss a case for failure to prosecute. We agree that merely filing a motion to enter would not ipso facto cure a lengthy lapse by party's failure to prosecute an action.
Plaintiffs state that the effect of the dismissal is a dismissal with prejudice, although the order stated that it was a dismissal without prejudice. They are correct. A party is allowed only one refiling if a case fails other than on its merits if the statute of limitations has run. 12 O.S. 2001 § 100. They argue that such a dismissal may not be allowed.
The dismissal herein was based upon Rule 9(b), consistent with a court's inherent power to dismiss a matter for a party's failure to timely prosecute. Public policy favors this inherent power of a court no less than a plaintiff's interest in having a matter tried on its merits. We decline to adopt Plaintiffs' argument that would necessarily give precedence to a party's dilatory conduct over a trial court's inherent powers.
The Arizona court in Gorman , however, stated that when "expiration o
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