Schwartzle v. Austin Co.

429 N.W.2d 69, 1988 S.D. LEXIS 134, 1988 WL 94730
CourtSouth Dakota Supreme Court
DecidedSeptember 14, 1988
Docket16071
StatusPublished
Cited by21 cases

This text of 429 N.W.2d 69 (Schwartzle v. Austin Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwartzle v. Austin Co., 429 N.W.2d 69, 1988 S.D. LEXIS 134, 1988 WL 94730 (S.D. 1988).

Opinions

MILLER, Justice.

■ In this appeal we hold that the trial court did not abuse its discretion in dismissing a civil action because of plaintiff's failure to prosecute.

FACTS

A chronology of events best articulates what occurred in this action.

On October 16, 1972, plaintiff injured her right leg and knee when she fell into an excavation trench as she was crossing a lot to enter her place of employment at the John Morrell & Company plant in Sioux Falls, South Dakota.

Plaintiff filed a claim for worker’s compensation with the South Dakota Department of Labor.

[70]*701975

Plaintiff began seeing an orthopedic surgeon, Dr. Nice, who, on September 22, 1975, wrote to her former attorney informing him that plaintiff had a 15% impairment of her right lower extremity.

Plaintiff commenced this action against the general contractor, The Austin Company, and the subcontractor, Electric Construction Company, by serving a summons and complaint on October 10, 1975, shortly before the expiration of the statute of limitation.

Plaintiff filed the summons and complaint with the Minnehaha clerk of courts on April 14, 1978, together with a notice of trial stating that the action would be brought on for trial in the term of court beginning May 1, 1978.

The record reflects that during 1978 there was activity between the two defendants 1 which resulted in an order granting partial summary judgment in favor of The Austin Company on November 15,-1978.

1979-1981

The court file reflects no activity.

On February 8, 1982, Electric Construction Company served a set of interrogatories upon plaintiff.

On December 8, 1983, the circuit court (Judge Heege) issued an order to show cause why the case should not be dismissed for want of prosecution since there had been no activity for more than a year. SDCL 15-11-11.

The order to show cause hearing was held on January 30, 1984. In his affidavit opposing dismissal, plaintiffs former attorney explained that the delay in the case was due to a) waiting for plaintiffs job status to stabilize so her wage claim would not be speculative, b) counsel’s absence from the state from September 1983 through mid-January 1984 due to his sons’ serious personal injuries, and c) counsel’s duties as a part-time state’s attorney. Counsel said that he had convinced plaintiff that now was the time to bring the matter to a close. He also said that his schedule allowed him to “devote considerable time” to the matter in an attempt to close it as soon as possible.

On January 31, 1984, Judge Heege filed an order dismissing the action without prejudice for want of prosecution effective March 30, 1984, unless further action was taken. On March 3, plaintiff applied to the court for a further extension. On May 22, 1984, Judge Heege filed an order stating that the action had been erroneously dismissed without prejudice and ordering that the case be reopened “provided that the court will dismiss said action without prejudice for want of prosecution on November 1,1984, if no further action is taken by that date.”

Three days before the November 1, 1984, deadline plaintiff served her answers to the interrogatories that Electric Construction Company had served on her on February 8, 1982. Two days later, October 31, 1984, plaintiff served a set of interrogatories on Electric Construction Company.

Electric Construction Company answered plaintiff’s interrogatories on February 14, 1985.

Electric Construction Company took plaintiff's deposition on October 31, 1985. On November 12, 1985, new counsel for plaintiff was present at her deposition and filed a notice of appearance.

On December 22,1986, Electric Construction Company deposed Robert Erkonen, an economist hired by new counsel. Erkonen had completed his final report in May 1986. Plaintiff, through counsel, then wrote defendants on December 29, 1986, outlining her settlement demand.

On January 28, 1987, plaintiff served a second set of interrogatories on Electric Construction Company.

[71]*71Plaintiff took the deposition of her orthopedic surgeon, Dr. Nice, on April 22, 1987. This deposition was taken for the purposes of her worker’s compensation case, which was concluded in July 1987.

On June 10, 1987, Electric Construction Company answered the interrogatories that plaintiff served on January 28, 1987. On July 29, 1987, the defense filed a motion for summary judgment and a motion to dismiss for failure to prosecute. SDCL 15-11-11, 15-6-41(b). Plaintiffs former and new attorneys filed affidavits in opposition to the motion for summary judgment.2

After giving plaintiff ten days to produce probative facts showing there was an agreement between counsel to stay the prosecution of the civil action pending resolution of plaintiff's worker’s compensation case, the trial court, (Judge Amundson) dismissed plaintiff’s complaint on November 3, 1987. In its letter decision the court noted that there had been nine to ten years of inactivity prior to the first court ordered dismissal and at least two years of inactivity after the reinstatement. The court further said:

The court record, discloses that the plaintiff had a disability rating as early as 1975, an economist was not retained until ten years after the case was served, no discovery was completed until over ten years had elapsed and one dismissal motion was averted by plaintiff approximately eight years after the case was filed. In other words, the plaintiff has allowed this case to go unattended for an excessive amount of time. It is a complete mystery to the court how a motion for trial can be filed in 1978 with nothing further being done by plaintiff to bring the matter on for trial for the next nine years. These facts clearly show that there has been a failure on the part of the plaintiff to prosecute this case.

DECISION

“For failure of the plaintiff to prosecute ... a defendant may move for dismissal of an action or of any claim against him.” SDCL 15-6-41(b). In addition, a trial court may dismiss civil cases “where there has been no activity for one year, unless good cause is shown to the contrary.” SDCL 15-11-11.

When reviewing a trial court’s grant or denial of a motion to dismiss for failure to prosecute, this court determines whether the trial court abused its discretion. Duncan v. Pennington County Housing Auth., 382 N.W.2d 425 (S.D.1986). The power to dismiss should be exercised cautiously and granted only in cases of an unreasonable and unexplained delay in prosecution. Id. The mere passage of time is not the test; rather, the test is whether, “under all the facts and circumstances of the particular case, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lamar Advertising of South Dakota, Inc. v. Heavy Constructors, Inc.
2010 S.D. 77 (South Dakota Supreme Court, 2010)
Eischen v. Wayne Township
2008 SD 2 (South Dakota Supreme Court, 2008)
Moore v. Michelin Tire Co., Inc.
1999 SD 152 (South Dakota Supreme Court, 1999)
Simpson v. C & R SUPPLY, INC.
1999 SD 117 (South Dakota Supreme Court, 1999)
Swenson v. Sanborn County Farmers Union Oil Co.
1999 SD 61 (South Dakota Supreme Court, 1999)
London v. Adams
1998 SD 41 (South Dakota Supreme Court, 1998)
Devitt v. Hayes
1996 SD 71 (South Dakota Supreme Court, 1996)
Annett v. American Honda Motor Co., Inc.
1996 SD 58 (South Dakota Supreme Court, 1996)
Dakota Cheese, Inc. v. Taylor
525 N.W.2d 713 (South Dakota Supreme Court, 1995)
Du-Al Manufacturing Co. v. Sioux Falls Construction Co.
444 N.W.2d 55 (South Dakota Supreme Court, 1989)
Van Zee v. Reding
436 N.W.2d 844 (South Dakota Supreme Court, 1989)
Gilbert v. United National Bank
436 N.W.2d 23 (South Dakota Supreme Court, 1989)
Schwartzle v. Austin Co.
429 N.W.2d 69 (South Dakota Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
429 N.W.2d 69, 1988 S.D. LEXIS 134, 1988 WL 94730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartzle-v-austin-co-sd-1988.