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Alexander v. Connelly Skis2/19/2002
der's medical records. Alexander filed a demand for a jury trial.
In October, the parties continued to discuss and correspond regarding discovery. On October 18, Connelly's lawyer sent Alexander's lawyer a letter stating: 'We have confirmed with the court that this case has been dismissed. We were made aware of this when we received a Order on Non- compliance Hearing dated August 3, 2000.' Counsel wrote: 'I presume that you have received a copy of the same order from the court. We do not intend to do any discovery until this case is back on the trial calendar.' CP 133. Alexander's counsel claims that he was unaware of the dismissal until he received Connelly's October 18 letter.
On November 15, Alexander filed a motion to vacate the Special Master's order based on the Special Master's failure to find that his conduct was intentional and to consider lesser sanctions. He also pointed out that the requirements of the May 25 order had been complied with at the time the August 3 order was entered; the Confirmation of Joinder had been filed and the complaint had been answered.
Connelly, in response to Alexander's motion acknowledged that '{w}hether or not this matter was properly dismissed is unclear to defense counsel.' Connelly, however, opposed Alexander's motion and outlined the various deficiencies in the plaintiff's conduct during the course of the litigation, including his failure to appear for five status conferences and his continual delay in responding to discovery requests. If the court vacated the dismissal, Connelly requested a new trial date be set because the case was not ready to proceed to trial in January.
On November 29, the court entered an order denying the motion to vacate. In its order, the court found that 'the plaintiff, through counsel, failed to respond to five Status Conference settings, failed to comply with the procedural rules for the bringing of the instant motion or even to serve and provide to the court a proposed order, and that the above numbered cause having been transferred from another county for defect of venue, and, Defendant having shown that Plaintiff has not yielded to discovery, in order to be prepared for trial.' The court concluded that 'the plaintiff's instant motion should be and therefore hereby is denied, and that the 3 August 2000 order of this court dismissing this numbered cause but without prejudice remains the order of this court. Plaintiff can bring a cause of action afresh to prosecute correctly under the rules and statutes governing litigation.' CP 179.
Alexander moved for reconsideration, requesting that the court hear oral argument on the matter. The court denied his motion and Alexander appeals the order denying his motion to vacate.
DISCUSSION
An appellate court will generally not disturb the trial court's disposition of a motion to vacate unless that court abused its discretion. Pederson's Fryer Farms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 454, 922 P.2d 126 (1996).
Alexander moved to vacate the dismissal pursuant to CR 60(b)(1). The Special Master's August 3, 2000 order was based on erroneous findings. It is undisputed that the confirmation of joinder and answer had, in fact, been filed before July 27. The trial court's order does not address the findings of the Special Master's order, or the grounds to vacate under CR 60(b)(1), but instead denies the motion to vacate on other grounds.
Although trial courts have the authority to dismiss actions under both the civil and local rules for noncompliance with court orders, the issue before the court was whether the Special Master's order of dismissal was based on a mistake, not whether t
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