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Boston v. Buchanan12/23/2003
y both parties and the signed statement of the trial court shows that the trial court was applying the § 1083 standard - an absence of activity in the case for a year. No authority appears in the briefs that would support a trial court's using this fact as the sole basis for exercising its inherent power to dismiss an action pursuant to the first two sentences of Rule 9(b).
Neither the order of dismissal nor the various narrative statements make any distinction between the standards for dismissing a case pursuant to § 1083 and an exercise of a court's inherent powers pursuant to Rule 9(b). This Court, as an appellate tribunal, does not make first-instance rulings. ACCOSIF v. American States Insurance Co., 2000 OK 21, 18, 1 P.3d 987, 995. We thus decline to make first-instance findings of the presence of facts, if any, relevant to the trial court's exercising its inherent power to dismiss this action because of delay in prosecution.
In sum, 12 O.S.2001 § 1083 does not serve as a basis for dismissing this action, because it was at issue. The trial court's reliance upon that statute is misplaced. The exercise of the trial court's inherent power to dismiss the matter is reversed for reason that the record affirmatively shows that trial court was using § 1083 as a standard for dismissing the action, as opposed to the common-law standards for dismissing an action pursuant to the first two sentences of Rule 9(b). Whether this case is proper for dismissal pursuant to those common-law standards we decline to address in advance of trial court's determination of the issue.
The opinion of the Court of Civil Appeals is vacated, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
WATT, C.J., HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ. - Concur
HARGRAVE, WINCHESTER, JJ. - Concur in Result
OPALA, V.C.J. - Dissents
OPALA, V.C.J., dissenting.
The court mischaracterizes today the district court's Rule 9(b) dismissal authority by referring to it as drawn from "inherent power." The erroneous use of the term elevates the process of statute-authorized rulemaking to a constitutional dimension. The question here is not whether Rule 9(b) may be converted in a proper context from its present status (as statutory) to that of one with a constitutional dimension, but whether, in the posture of this cause, it should be jurisprudentially boosted to a higher place in the hierarchy of legal norms. Convertibility of Rule 9(b) need not be tested; today it can be assumed. I write once again to condemn the court's habit of improperly labeling the legal sources of judicial rulemaking power by indiscriminately boosting these norms to constitutional status.
I. TODAY'S SUA SPONTE ELEVATION OF RULE 9(b) PROVISIONS TO AN INHERENT-AUTHORITY LEVEL IS NEITHER NECESSARY NOR LEGALLY CORRECT
A. Sources of State Law Are Divided Into Three Classes: Constitutional, Statutory and Common Law
The Common Law
The hierarchy for the state legal system's three sources of law ascribes to the common law the lowest rank - that which follows after the State's constitution and her legislative enactments. By the mandate of 12 O.S.2001 § 2 the common law, whose corpus includes equity and ecclesiastical law, remains in full force unless explicitly modified (or abrogated) by statute or by the constitution. The content of Oklahoma's declared common law consists of judicial opinions as well as court rules. The courts' equitable and common-law authority is drawn from the text of § 2.
Statutory Law
T
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