Morgan v. Leitner

444 A.2d 932, 1982 D.C. App. LEXIS 328

• Court: District of Columbia Court of Appeals
• Decided: April 1, 1982
• Docket: 81-407
• Status: Published

Opinions

MACK, Associate Judge:

This is an appeal from a dismissal with prejudice for failure to prosecute. Super. Ct.Civ.R. 41(b). An examination of the record leads us to conclude that the representations of appellees (defendants below) were antithetical to the trial court’s exercise of sound discretion. We, therefore, reverse and remand for trial.

A decision to dismiss for failure to prosecute is committed to the “sound discretion” of the court. This discretion, however, should be exercised “with care, since [such] a dismissal ... is a drastic remedy.” Garces v. Bradley, D.C.App., 299 A.2d 142, 144 (1973). In order to assure that an appellate court, in exercising its narrow scope of review, can accurately gauge the propriety of the imposition of this remedy, the trial court must make a full explication of the factors surrounding its decision to dismiss. Garces v. Bradley, supra at 144-45.

One crucial finding that the trial court must make is which of the parties contributed to the delay of the trial and in what ways and for what reasons they did so. Frazier v. Center Motors, Inc., D.C. App., 418 A.2d 1018, 1021 (1980). This requirement, in turn, assumes and demands a complete and forthright rendition and chronology of the various motions and requests for time extensions by the parties. Since the record on appeal reflects that the appel-lees did not accurately present this chronology in the trial court (or this court) we find that the trial judge may have been effectively precluded from assigning reasons for the trial delay and making legally supportable findings in this regard.

The record reveals the following chronology: The appellant brought suit in January 1977 alleging that her home had sustained structural damage as a result of excavation performed by the Bakers Local Union No. 118. In April 1977 a trial date of April 13, 1978 was set. The appellees, however, moved for continuances on both February 24, 1978 and March 20, 1978, and the trial date was continued until November 15, 1978. Prior to the scheduled trial, however, the appellant’s counsel, with the consent of both his client and the appellees, withdrew his appearance and the court again continued the trial until May 25, 1979.

On May 11, 1979, the appellant requested a continuance which was denied by the court. Less than one week later the appel-lees’ motion for a continuance was granted, however, and the trial was continued until December 4, 1979. Again, on July 26, 1979, the appellees requested a continuance and the trial date was delayed until December 13, 1979. The record further reflects that an additional continuance was granted on November 19, 1979, which set the trial date back to February 25, 1980, but does not reveal whether either of the parties had requested it or the court ordered it on its own motion. Finally, on February 25, a final continuance, this with the consent of both parties, was granted until October 7, 1980. When the appellant’s counsel failed to appear for trial on October 7, the appel-lees filed and the trial judge granted their motion for dismissal with prejudice. Further, the trial court denied the appellant’s motion for reconsideration and reinstatement.

The appellees’ rendition of this chronology differs from the record in several material respects. Their brief in this court did not reflect the fact that it was they who requested both the February 1978 and' March 1978 continuances. Further, the ap-pellees’ brief stated, contrary to the record, that the appellant’s May 1979 motion for continuance was granted over the objection of the appellees and made no reference to its motion of May 17, which was granted. Additionally, there was no reference in the appellees’ brief to its requested and granted continuance of July 16, 1979.

The appellees’ opposition to the appellant’s motion for reconsideration and reinstatement in the trial court contained the same discrepancies as their brief. Again, there was no reference to their requests of February and March 1978 nor to the fact that it was the appellees’ May 1979 request for a continuance, rather than the appellant’s, which was granted. Lastly, the ap-pellees also failed to note their motion for a continuance of July 1979 which, like their three previous motions, was granted.

In conclusion, since “a fair reading of the record [reveals that the appellees] contributed to some of the delay in this case,” Frazier v. Center Motors, Inc., supra at 1021, the trial court’s grant of the appellees’ motion to dismiss, which did not reflect that contribution, was in error. On this record we conclude that appellant is entitled to a trial on the merits.

Reversed and remanded.