 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Boston v. Buchanan12/23/2003
sed upon a fact other than the mere passage of time. Indeed, the Cervi court discussed other factors for a court to consider when dismissing an action because of a delay in prosecution, e.g., settlement negotiations, plaintiffs' hiring new counsel, and the defendant being responsible for part of the delay. Id. 362 P.2d at 1053. In Cervi the court further noted that the plaintiffs were prepared to proceed with the case at the time the dismissal was being considered by the trial court. Id. Both Baker and B & M International Trading Co. show that the exercise of a court's inherent power to dismiss an action because of a party's delay in prosecuting that action is not determined solely by the passage of a particular period of time.
The narrative statement prepared by Plaintiffs purports to contain the reasons set forth by the trial judge explaining why the action was dismissed. That statement contains no reference to prejudice suffered by the Defendants because of the delay in prosecuting the action, nor does the narrative statement signed by the trial judge. The narrative statement provided by Defendants states that the trial judge "noted it was prejudicial for defendants to defend care in that 1993 surgery, and post-surgical care carrying over from 1994 to 2001." But the narrative statement prepared by Defendants provides no facts or reasons therein how Plaintiff's action, to the extent that it related to "post-surgical care carrying over from 1994 to 2001" caused Defendants prejudice in defending an action in 2001. We note the passage of eight years from the surgery in 1993 to the dismissal of the action in 2001, but the narrative statements do not provide any hint for identifying the nature of the prejudice suffered by Defendants in defending such allegations. The order of dismissal is silent on the issue of prejudice suffered by Defendants.
Defendants also state that the trial court said that the passage of time in this case was extremely prejudicial to Defendants. However, Plaintiffs' argue that no showing was made in the trial court that Defendants would suffer any prejudice. The narrative statements do not refer to any specific facts used for the trial court's determination of prejudice. Defendants state that the trial court's finding of prejudice is simply this: If the case is allowed to proceed and Plaintiffs are unable to make assurances that their future medical conditions would be sufficiently healthy to participate in further discovery and trial, then the matter would not be tried until some distant undetermined point in the future, and Defendants would be prejudiced by a potentially unresolved claim.
This argument is rejected for two reasons. First, in responding to a different argument Defendants state that no facts were before the trial court showing a lack of ability on the part of either Plaintiffs or their counsel in participating in discovery. If no facts are before the court to show that Plaintiffs cannot participate in discovery and trial, then no facts support Defendants' concept of prejudice that is based upon their view of an uncertain future trial date. Further, reversing the trial court's order does not necessarily allow Plaintiffs to delay trying the case until an indefinite time in the future. In this case, plaintiffs filed a motion to enter and, presumably, litigation deadlines will be set by the trial court upon remand. Rule 5(C) of the Rules for District Courts, supra.
When the trial court uses an incorrect legal standard we review that issue de novo. Christian v. Gray, 2003 OK 10, 43, 65 P.3d 591, 608, explaining, Scoufos v. State Farm Fire and Cas. Co., 2001 OK 113, 1, 41 P.3d 366, 367. A reading of the narrative statements b
Page 1 2 3 4 5 6 7 8 9 10 11 12 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|