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Boston v. Buchanan12/23/2003
e trial court in a judicially cognizable form for that proceeding? Neither of these questions is "settled" or resolved by the trial court's signed statement. The narrative statement in lieu of transcript is for the purpose of making a record of what actually happened at a previous trial or proceeding. This Court is presented with conflicting statements of what was said at the hearing. These conflicting statements are insufficient to create a settled statement on facts relating to Plaintiffs' medical conditions. Further, because we reverse the trial court on other grounds we need not attempt to address from the inconsistent narrative statements whether the form of the proof before the trial court was proper.
Plaintiffs suggest that Rule 9(b), by reason of its lack of specificity, is too vague to constitutionally support a dismissal. Applying a statute, or rule, with a facially uncertain meaning to a specific case includes a review of the previous judicial construction of that statute or rule. This is so because "clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute . . . ." U.S. v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
Judicial decisions construing a common law principle are appropriate for a court's analysis when a court also construes the meaning of a statute that codifies that common law principle. See, e.g., Schepp v. Hess, 1989 OK 28, 770 P.2d 34, 38, (common law term-time power codified in 12 O.S. § 1031.1 is coextensive with the common law term-time power); U.S. v. Ramirez, 523 U.S. 65, 72 -73, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), (decisions construing the Fourth Amendment apply to construction of 18 U.S.C. § 3109). The first two sentences of Rule 9(b) restate one aspect of a court's inherent power recognized at common law. Thus, our opinions discussing this power are applicable when we construe Rule 9(b), and impart notice of the meaning to Rule 9(b) to those potentially within the scope of that Rule who would urge its invalidity for vagueness.
In Baker v. Deichman, 1939 OK 327, 94 P.2d 246, we said that "The power of the courts to dismiss for failure to prosecute has long been recognized." Id. at 247. We then noted opinions from several jurisdictions where cases were dismissed following delays in prosecution varying from three to ten years. Id. We then said that:
While time is not the sole issue in determining the question it nearly always happens, as it did in this case, that other factors arise, such as the loss of evidence, death of witnesses or parties, or other developments, rendering it inequitable to continue permission to prosecute. Both from an appraisal of the situation in this case and from comparison of it with other decisions in the books we are of the opinion that the trial court did not abuse its discretion in dismissing the petition.
Baker v. Deichman, 1939 OK 327, 94 P.2d at 247.
Baker states that passage of time is not solely dispositive of whether an action should be dismissed, and that prejudice to defendants must also be considered.
In B & M International Trading Co. v. Woodie Ayers Chevrolet, Inc., 1988 OK 133, 765 P.2d 782, we quoted with approval from Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961), and we stated that:
"although a trial court has inherent power to dismiss a case for want of prosecution, such power is not unlimited, and should not be exercised where the record shows, as here that both parties nursed the case along with the court's approval." B & M International Trading Co., 765 P.2d at 784, quoting, Cervi, 362 P.2d at 1051."
We thus focu
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