Lambert v. American Dream Homes Corp.

939 P.2d 661, 148 Or. App. 371, 1997 Ore. App. LEXIS 761
CourtCourt of Appeals of Oregon
DecidedJune 11, 1997
Docket911397; CA A87691
StatusPublished
Cited by13 cases

This text of 939 P.2d 661 (Lambert v. American Dream Homes Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lambert v. American Dream Homes Corp., 939 P.2d 661, 148 Or. App. 371, 1997 Ore. App. LEXIS 761 (Or. Ct. App. 1997).

Opinions

[373]*373LANDAU, J.

Plaintiff appeals a judgment dismissing his complaint for want of prosecution. We reverse and remand.

The relevant facts are not in dispute. On October 21, 1991, plaintiff filed a complaint against American Dream Homes Corporation (American) alleging that he had purchased a new manufactured home from American that was defective in many respects. The matter was referred to an arbitrator, and, on June 18, 1992, the arbitrator found in favor of plaintiff. On July 14, 1992, American filed a request for a trial de novo before the circuit court. Trial was scheduled to begin October 29,1992. On October 28,1992, plaintiff moved for a continuance, and the trial court granted the motion. Trial was rescheduled to begin January 6,1993.

Two days before trial was scheduled to begin, American filed a motion to withdraw its request for a trial de novo. Plaintiff opposed the motion and urged that the trial go forward as scheduled. The trial court declined to accept American’s withdrawal and rescheduled the trial to begin June 28, 1993. Two months before trial, American moved for a continuance, which the trial court granted; trial was postponed to July 7, 1993. Two weeks before trial, American again moved for a continuance, and again the trial court granted American’s motion. Two weeks before the next trial date, American moved again for leave to withdraw its request for a trial de novo, and again the trial court denied the motion and rescheduled trial for October 28, 1993. The record does not explain why trial did not proceed on that date, but on November 2, 1993, American once again moved for a continuance, citing ongoing settlement negotiations with plaintiff. The trial court granted the motion, setting the case for trial on June 7,1994.

In the meantime, plaintiff moved for leave to file a first amended complaint. The trial court granted the motion, and, on March 17, 1994, plaintiff filed a first amended complaint, which added claims against the manufacturer of plaintiffs home, Liberty Homes, Inc. (Liberty). On May 23, 1994, Liberty filed Rule 21 motions against the first amended complaint and moved the court to postpone the trial date. The [374]*374trial court granted the postponement until September 12, 1994. The Rule 21 motions never were heard. Liberty withdrew its request for argument on the matter after plaintiff agreed to file a second amended complaint. On July 25,1994, plaintiff circulated to both defendants a proposed second amended complaint. Plaintiff advised both defendants that, if neither party had any further objections, he would file the second amended complaint on August 1, 1994, so that trial could proceed as scheduled.

Plaintiff did not file the second amended complaint. The parties agreed to meet to discuss the case on August 2, 1994. At that time, the parties continued their settlement negotiations. On September 1, 1994, all three parties filed a stipulated motion for a continuance until February 1995. The trial court granted the motion. The next entry in the trial court register is a joint motion of American and Liberty, filed on January 27, 1995, for an order dismissing the action for want of prosecution. The motion is supported by an affidavit of counsel complaining of plaintiff’s failure to cooperate with settlement negotiations and discovery requests over the preceding five months. Plaintiff opposed the motion and offered an affidavit of his counsel complaining that it was defendants who failed to cooperate with settlement efforts and that only after plaintiff refused a January 20, 1995, settlement offer did defendants move for dismissal of the action.

At oral argument on the dismissal motion, the trial court asked plaintiff whether he was prepared to go to trial. Plaintiff responded that he was prepared to try the case as scheduled, on February 13, 1995, on the claims described in the second amended complaint, which had been sent to counsel over six months earlier. Defendants complained that they would need additional time to conduct discovery before they would be ready to try the case. The trial court granted the dismissal motion, explaining its decision in the following terms:

“[T]his case has been around for a long time. It’s been set for trial since last September with the concurrence of the parties. The Court would anticipate that every party would be prepared, would have done what it was required to do in time so that everyone could be prepared to go forward with the trial. I am satisfied that there was not a complaint filed as it was the obligation of the Plaintiff to do to move the [375]*375case along. And for that reason, primarily, I am doing this. But I am taking into account the long history of this case that was recounted to me which frankly, before anyone recounted it, I read through the file and saw. It’s gone on and on and on. The Plaintiff cannot have forever to seek justice. He has to meet the requirements that are placed on every other plaintiff and that’s—I think he has not met that.”

Plaintiff contends that the trial court erred in dismissing the action. At the very worst, he argues, he delayed in filing a second amended complaint for several months during which time the parties engaged in settlement negotiations. According to plaintiff, it was defendants who were less than diligent in failing to prepare for the trial on schedule. Defendants respond that, because plaintiff had “withdrawn” his first amended complaint, there was no basis for them to prepare for any trial, and, given the length of time the action had been pending, the trial court did not abuse its discretion in dismissing the case.

We review the trial court’s decision to dismiss for want of prosecution for abuse of discretion. Blue Horse v. Sisters of Providence, 113 Or App 82, 85, 830 P2d 611, rev den 314 Or 727 (1992). An abuse of discretion occurs when the trial court’s decision is “not justified by and clearly against the evidence and reasonr Lutz v. State of Oregon, 130 Or App 278, 285, 881 P2d 171 (1994). Although plaintiffs generally bear the responsibility for seeing that their cases move forward, Imhof v. Tillamook County, 30 Or App 675, 680, 567 P2d 1054 (1977), delay alone does not show a lack of prosecution. Moore v. Ball, Janik & Novack, 120 Or App 466, 471, 852 P2d 937, rev den 317 Or 485 (1993).

We have noted in another context that dismissal is a “drastic” sanction, to be reserved for the most severe violations of rules and court orders. Pamplin v. Victoria, 138 Or App 563, 567, 909 P2d 1245 (1996) (dismissal appropriate only in the face of “most severe violations”). The Supreme Court likewise has stated that, even when responding to willful violations of court discovery orders, a trial court may order dismissal only after explaining “the analytical process by which [it] concluded that dismissal is ‘just’ in * * * view of the other sanctions that are available.” Pamplin v. Victoria, [376]*376319 Or 429, 437, 877 P2d 1196 (1994). In cases in which a party faces sanctions for mere negligent conduct, we perceive no lesser need for care in framing an appropriate sanction. With those principles in mind, we turn to the trial court’s decision.

We are unable to discern either evidence or reason to support the dismissal of this case for want of prosecution. The trial date that the court previously set had not yet arrived, and plaintiff said that he was ready to proceed.

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Lambert v. American Dream Homes Corp.
939 P.2d 661 (Court of Appeals of Oregon, 1997)

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Bluebook (online)
939 P.2d 661, 148 Or. App. 371, 1997 Ore. App. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-american-dream-homes-corp-orctapp-1997.