Snohomish County v. Thorp Meats

750 P.2d 1251, 110 Wash. 2d 163

• Court: Washington Supreme Court
• Decided: March 3, 1988
• Docket: 53506-0
• Status: Published

Opinions

Andersen, J.—

Facts of Case

At issue is whether the Court of Appeals erred when it reversed the trial court's dismissal of plaintiff's action for want of prosecution. We hold that it did not err in so ruling.

Mr. and Mrs. Russell Thorp, through their company Thorp Meats, owned waterfront property in Snohomish County. In 1979 they permitted Fiorito Brothers, Inc. to deposit excess fill on this property resulting from a state highway construction project.

On August 11, 1980, Snohomish County, the plaintiff herein, filed an action against Thorp Meats seeking an injunction requiring removal of the fill and restoration of the property to its natural state. Plaintiff amended its complaint to join Fiorito Brothers as an additional defendant on October 28, 1980.

No further action was taken on the case until January 4, 1982, when plaintiff moved for default. Both defendants then filed answers and the hearing on the default motion was stricken. The case continued to be inactive until, on July 26, 1983, the superior court clerk notified the plaintiff that the case would be dismissed without prejudice pursuant to CR 41(b)(2) if no action was taken within 30 days.

Then within the 30-day period, on August 8, 1983, plaintiff filed a note for trial setting, the setting to occur August 23, 1983. Thereupon one of the defendants filed a motion for dismissal under CR 41, noting the motion for hearing on the August 23 setting date.

On August 23, 1983, counsel for plaintiff went to the superior court administrator's office and secured a trial date of February 9, 1984. Later that day, counsel for both sides appeared before the Snohomish County Superior Court for the hearing on the motion for dismissal. After arguments were heard, the trial court granted the motion and entered an order of dismissal with prejudice. The trial court based its decision on the court's inherent discretion to dismiss actions.

Plaintiff appealed, and the Court of Appeals, by a divided decision, reversed the order of dismissal.¹ A majority of that court held that CR 41(b)(1) controlled, and that it precluded dismissal since the plaintiff had noted the case for trial before the hearing on the motion to dismiss. We granted defendants' petition for review.²

There is one issue.

Issue

When a motion to dismiss for lack of prosecution is made, can a dismissal on that basis be prevented by the opposing party noting the case for trial before the motion to dismiss is heard?

Decision

Conclusion. Where a case is noted for trial before a motion to dismiss for lack of prosecution is heard, dismissal for lack of prosecution is precluded. In this situation, the express provisions of CR 41(b)(1) control over the general provisions of CR 41(b) and over the trial court's discretionary authority.

Defendants argue that a trial court has the authority to dismiss a civil suit for want of prosecution based on its inherent authority and on the first paragraph of CR 41(b) notwithstanding the promulgation of CR 41(b)(1). The sections of CR 41 at issue read as follows:

dismissal of actions

(b) Involuntary Dismissal; Effect. For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.

(1) Want of Prosecution on Motion of Party. Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff neglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days' notice to the adverse party. If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.

We turn first to the argument that a court has inherent authority to dismiss an action even when the facts presented would prohibit dismissal under CR 41(b)(1). A court of general jurisdiction has the inherent power to dismiss actions for lack of prosecution,³ but only when no court rule or statute governs the circumstances presented.

The dismissal of an action for want of prosecution, in the absence of statute or rule of court creating the power and guiding its action, is in the discretion of the court.

State ex rel. Dawson v. Superior Court, 16 Wn.2d 300, 304, 133 P.2d 285 (1943).⁴ We have consistently held that where the provisions of CR 41(b)(1) and its predecessors apply, dismissal of an action is mandatory; there is no room for the exercise of a trial court's discretion.⁵ It follows that in ruling on a motion to dismiss pursuant to CR 41, the trial court may not generally consider the merits of the case nor the hardship which application of the rule may bring.⁶

Given these well established rules, it would be anomalous if we were to now hold that a trial court may exercise discretion when faced with circumstances requiring that an action under CR 41(b)(1) not be dismissed. Before 1967, the only way to avoid dismissal for want of prosecution under the predecessor of CR 41(b)(1) was to note the action for trial within 1 year after issues were joined.⁷ In 1967, CR 41(b)(1) was adopted, however, and this critical sentence was added to the rule:⁸

If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.

(Italics ours.) It seems entirely clear to us, and we so hold, that this sentence now bars dismissal whether the case is noted for trial within 1 year of joinder or after, so long as the case is noted for trial before the motion to dismiss is heard.⁹ This sentence was promulgated to encourage cases to be heard on the merits, the courts recognizing that involuntary dismissal for want of prosecution "is punitive or administrative in nature and every reasonable opportunity should be afforded to permit the parties to reach the merits of the controversy."¹⁰ Thus, the notice of trial setting interposed after the motion to dismiss and before the hearing on the motion is the exception to what would otherwise be a mandatory dismissal under CR 41(b)(1).¹¹

It would be illogical to now rule that while dismissal under CR 41(b)(1) is mandatory if the circumstances fit within the rule, nondismissal somehow requires or even allows the exercise of a trial court's discretion in this situation. Indeed, as the Court of Appeals has recognized,

the 1967 revision contemplates a limitation upon the otherwise inherent discretionary power of the court to dismiss, upon the motion of a party, for failure to bring a case on for trial in a timely fashion.[¹²]

We conclude that the final sentence of CR 41(b)(1) means precisely what it says, a case shall not be dismissed for want of prosecution if it is noted for trial before the hearing on the motion to dismiss. The rule as it has read since 1967 thus limits the power of the trial court to dismiss for failure to prosecute after the issue is joined and the case noted for trial.¹³

This interpretation does not destroy a trial court's inherent authority to manage its calendar. Where dilatoriness of a type not described by CR 41(b)(1) is involved, a trial court's inherent discretion to dismiss an action for want of prosecution remains.¹⁴

Nor does our interpretation of CR 41(b)(1) read CR 41(b) out of existence. We are well aware that one commentator has recommended that CR 41(b) be given independent effect:

Subdivision (b) deals with several types of involuntary dismissals, . . .

CR 41(b) provides in its initial paragraph that the defendant may move for dismissal for failure of the plaintiff to prosecute or to comply with "these" rules or any order of the court. Although the arrangement of the Rule is such that it might be taken that the first paragraph is merely a generalization of, and controlled by, the specific provisions which follow on, such a reading does not appear to be justified; the first paragraph should be considered as having independent effect.

4 L. Orland, Wash. Prac., Rules Practice § 5502, at 241 (3d ed. 1983). This same commentator, however, proceeds to explain that "independent effect" means an application to circumstances other than those presented in this case:

It is, of course, recognized that specialized provisions of the Rule contained in Subdivision (b)(1) speak in terms of want of prosecution, and provide for dismissal without prejudice if plaintiff does not note the action for trial or hearing within one year after issue joined. Because of these specialized provisions, it must be considered that the first paragraph of Subdivision (b) must relate to other types of failure to prosecute, such as abandonment at trial, or failure to attend on the trial date.

(Italics ours.) 4 L. Orland § 5502, at 241.¹⁵

Thus, where a motion for dismissal for want of prosecution is prompted by inaction in bringing the case on for trial, CR 41(b)(1) controls over the more general provisions of CR 41(b) to preclude dismissal if the case is noted for trial before the dismissal motion is argued. As noted earlier, CR 41(b)(1) also prevents dismissal under these circumstances pursuant to a trial court's inherent authority.

The Court of Appeals correctly reversed the trial court's dismissal of plaintiff's action since that action was noted for trial before the hearing on the motion to dismiss for lack of prosecution.

Affirmed.

Brachtenbach, Dolliver, and Dore, JJ., and Cunningham and Hamilton, JJ. Pro Tern., concur.

1 Snohomish Cy. v. Thorp Meats, 46 Wn. App. 13, 728 P.2d 1084 (1986).

2 RAP 13.4(b).

3 See State ex rel. Dawson v. Superior Court, 16 Wn.2d 300, 304, 133 P.2d 285 (1943), cited in Stickney v. Port of Olympia, 35 Wn.2d 239, 241, 212 P.2d 821 (1949); see also Bishop v. Hamlet, 58 Wn.2d 911, 914, 365 P.2d 600 (1961).

4 Accord, Stickney, at 241; Gott v. Woody, 11 Wn. App. 504, 506, 524 P.2d 452 (1974).

5 See Day v. State, 68 Wn.2d 364, 366, 413 P.2d 1 (1966); Simpson v. Glacier Land Co., 63 Wn.2d 748, 750, 388 P.2d 947 (1964); Burns v. Payne, 60 Wn.2d 323, 325, 373 P.2d 790 (1962); State ex rel. Witting v. Superior Court, 56 Wn.2d 117, 119, 351 P.2d 409 (1960); Hayes v. Quigg, 46 Wn.2d 453, 455, 282 P.2d 301 (1955); State ex rel. Washington Water Power Co. v. Superior Court, 41 Wn.2d 484, 488, 250 P.2d 536 (1952); Caldwell v. Caldwell, 30 Wn.2d 430, 439, 191 P.2d 708 (1948).

6 See McDowell v. Burke, 57 Wn.2d 794, 795-96, 359 P.2d 1037 (1961); Water Power, at 489; State ex rel. Philips v. Hall, 6 Wn.2d 531, 537, 108 P.2d 339 (1940).

7 See Washington Case Law — 1954, 30 Wash. L. Rev. 83, 158-59 (1955).

8 See Yellam v. Woerner, 77 Wn.2d 604, 606-07, 464 P.2d 947 (1970).

9 See Yellam, at 608; Gott, at 507.

10 Yellam, at 608; Landberg v. State, 36 Wn. App. 675, 676-77, 676 P.2d 1027 (1984); 4 L. Orland, Wash. Prac., Rules Practice § 5502, at 243 (3d ed. 1983).

11 McDermott v. Waters, 78 Wn.2d 89, 91, 469 P.2d 896 (1970).

12 'Gott. at 507.

13 4 L. Orland § 5502, at 243.

14 See Gott, at 508, and cases cited therein.

15 See also Miller v. Patterson, 45 Wn. App. 450, 456, 725 P.2d 1016 (1986).