BA Leasing Corp. v. Board of Assessment Appeals

Colorado Court of Appeals

BA Leasing Corp. v. Board of Assessment Appeals

653 P.2d 80, 1982 Colo. App. LEXIS 864

CourtColorado Court of Appeals

DecidedSeptember 9, 1982

Docket82CA0042

StatusPublished

Cited by9 cases

This text of 653 P.2d 80 (BA Leasing Corp. v. Board of Assessment Appeals) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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BA Leasing Corp. v. Board of Assessment Appeals, 653 P.2d 80, 1982 Colo. App. LEXIS 864 (Colo. Ct. App. 1982).

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Opinion

KELLY, Judge.

Pursuant to § 39-8-108(2), C.R.S.1973 (1981 Cum.Supp.) and § 24-4-106(4), C.R.S. 1973 (1981 Cum.Supp.), plaintiff, BA Leasing Corporation, sought review in the district court of a tax assessment decision made by defendant Board of Assessment Appeals. More than one year after the filing of the complaint, the Arapahoe County defendants moved to dismiss the action for failure to prosecute pursuant to C.R. C.P. 41(b)(1). Plaintiff appeals the trial court’s dismissal of the action. We affirm.

Plaintiff contends that the trial court erred in failing to make fact findings as required by C.R.C.P. 41(b)(1). However, the rule requires fact findings only if there has been a trial and the court has rendered judgment against the plaintiff on the merits. Thus, although the trial court did not make fact findings here, there was no error.

The decision whether there has been a failure to prosecute which warrants dismissal lies within the sound discretion of the trial court. Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961). The burden is on the plaintiff to prosecute a case in due course and without unusual delays. Cervi, supra. In this case, plaintiff slept on its rights for over a year without even filing in the district court the record of the proceedings before the Board. In the absence of mitigating circumstances, this period of inaction is sufficient to justify dismissal of the action.

Plaintiff argues that its diligent attempt to resolve assessment questions in another action concerning the 1980 tax year mitigates its failure to act in this case, which concerns the 1979 tax year. How *82 ever, movement in another case is irrelevant to this one. The reasons stated by plaintiff as justification for not dismissing the action constitute “a bare conclusion that is insufficient to establish why there had been no action during the preceding year.” Radinsky v. Karras, 511 P.2d 953 (Colo.App.1973) (not selected for official publication).

Plaintiffs contention that defendant must show it was prejudiced is also without merit. It is unnecessary for the party moving to dismiss to show inconvenience or injury suffered by reason of the delay because the law presumes injury from unreasonable delay. Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928). Where, as here, defendant has shown unreasonable delay and plaintiff has failed to show mitigating circumstances, the trial court correctly granted defendant’s motion to dismiss for failure to prosecute.

The judgment is affirmed.

PIERCE and KIRSHBAUM, JJ., concur.

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KELLY, Judge.

Pursuant to § 39-8-108(2), C.R.S.1973 (1981 Cum.Supp.) and § 24-4-106(4), C.R.S. 1973 (1981 Cum.Supp.), plaintiff, BA Leasing Corporation, sought review in the district court of a tax assessment decision made by defendant Board of Assessment Appeals. More than one year after the filing of the complaint, the Arapahoe County defendants moved to dismiss the action for failure to prosecute pursuant to C.R. C.P. 41(b)(1). Plaintiff appeals the trial court’s dismissal of the action. We affirm.

Plaintiff contends that the trial court erred in failing to make fact findings as required by C.R.C.P. 41(b)(1). However, the rule requires fact findings only if there has been a trial and the court has rendered judgment against the plaintiff on the merits. Thus, although the trial court did not make fact findings here, there was no error.

The decision whether there has been a failure to prosecute which warrants dismissal lies within the sound discretion of the trial court. Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961). The burden is on the plaintiff to prosecute a case in due course and without unusual delays. Cervi, supra. In this case, plaintiff slept on its rights for over a year without even filing in the district court the record of the proceedings before the Board. In the absence of mitigating circumstances, this period of inaction is sufficient to justify dismissal of the action.

Plaintiff argues that its diligent attempt to resolve assessment questions in another action concerning the 1980 tax year mitigates its failure to act in this case, which concerns the 1979 tax year. How *82 ever, movement in another case is irrelevant to this one. The reasons stated by plaintiff as justification for not dismissing the action constitute “a bare conclusion that is insufficient to establish why there had been no action during the preceding year.” Radinsky v. Karras, 511 P.2d 953 (Colo.App.1973) (not selected for official publication).

Plaintiffs contention that defendant must show it was prejudiced is also without merit. It is unnecessary for the party moving to dismiss to show inconvenience or injury suffered by reason of the delay because the law presumes injury from unreasonable delay. Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928). Where, as here, defendant has shown unreasonable delay and plaintiff has failed to show mitigating circumstances, the trial court correctly granted defendant’s motion to dismiss for failure to prosecute.

The judgment is affirmed.

PIERCE and KIRSHBAUM, JJ., concur.

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