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Howell v. Verizon South4/1/2005
s attorney in the prosecution or defense of litigation. As for the meritoriousness of the case, Howell has given us little to go on. Verizon argues that the claim must be of comparatively little merit since Howell failed to put much effort into the prosecution of this case while simultaneously litigating the worker's compensation claim to its conclusion.
The prejudice to Verizon results from the difficulty of preparing a defense years after the incident. Witnesses would be difficult to locate and evidence may have been misplaced or destroyed.
The final factor for review is the availability of alternative sanctions for the offending party. The Civil Rules provide several alternative and less drastic sanctions.
However, which of these sanctions to employ is primarily within the trial court's discretion. We are not to substitute our judgment for that of the trial court unless that discretion is abused. The fact that Howell failed to prosecute this case even after being given a sixty day extension of time to do so, supports the trial court's decision.
Reviewing all the factors, we find no abuse of discretion. We affirm.
ALL CONCUR.
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