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McCord v. Smith7/5/2005
Allan and Sally McCord and Vahne and Irwin Dierking appeal the denial of their motion to vacate an order dismissing their personal injury action against Vernon Smith. Because the appellants fail to show an abuse of discretion, we affirm.
Appellants initiated a personal injury lawsuit. When they took no steps to prosecute their cause of action for approximately six months, the court set a show cause hearing. At the show cause hearing, even though the appellants were not in compliance with the rules, the court granted a continuance, and set another show cause hearing. The order stated that if confirmation of joinder were filed before the next hearing date, the hearing would be stricken.
Another three months passed, and the appellants still had not prosecuted the action. On July 20, 2004, the court entered an order dismissing the case without prejudice. Appellants' counsel claims that neither he nor defense counsel received notice of the dismissal.
Two months later, appellants moved to vacate the order of dismissal and transfer the case to arbitration. They cited no authority to justify vacating the order. In response, the respondent argued that the appellants were barred from proceeding further with the action because the statute of limitations had run.
The trial court denied the motion to vacate, and later denied appellants' motion for reconsideration.
Appellants' sole argument is that the trial court abused its discretion by denying their motion to vacate because dismissal is far too harsh a sanction to impose for failing to attend a compliance hearing. We will not overturn a trial court's decision to deny a Civil Rule 60(b) motion to vacate an order of dismissal 'unless the court manifestly abused its discretion.' A court abuses its discretion when it bases its decision on untenable grounds or for untenable reasons.
Appellants rely on Vaughn v. Chung, which held that a trial court does have authority to consider a party's CR 60(b) motion to vacate an order of dismissal entered pursuant to CR 41(b)(2). The appellants argue that the trial court failed to follow Vaughn because it denied their motion and did not give due consideration to the harshness of the result in light of the appellants' mistake. But Vaughn merely holds that a trial court may at its discretion grant an CR 60(b) motion to vacate an order of dismissal entered pursuant to CR 41(b)(2). It does not hold that a trial court should grant such a motion.
Vaughn provides little guidance to a trial court attempting to decide whether or not to grant a motion to vacate. We conclude that the appellants have not shown that the trial court based its decision on untenable grounds. The trial court waited over 90 days from the initial show cause hearing before dismissing the case. The decision to deny the motion to vacate was well within the discretion of the court.
AFFIRMED
Baker J.
Agid J.
Kennedy J.
Page 1 Washington Personal Injury Attorneys
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