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Wallace v. Evans

April 10, 1997

MICHAEL H. WALLACE AND BARBARA WALLACE, HUSBAND AND WIFE, AND WESTCO CORPORATION, A CALIFORNIA CORPORATION, RESPONDENTS,
v.
ANDREW L. EVANS AND ANN LLEWELLYN EVANS, HUSBAND AND WIFE, PETITIONERS.



Appeal from Superior Court of King County. Docket No: 87-2-14016-4. Date filed: 01/05/96. Judge signing: Hon. Robert J. Wesley. Judgment Date: 5-21-96.

Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Barbara A. Madsen, Gerry L. Alexander. Dissenting: Philip A. Talmadge, Charles W. Johnson.

The opinion of the court was delivered by: Sanders

En Banc

SANDERS, J.-Petitioners Evans seek review of a trial court's denial of their motion to dismiss for want of prosecution. Petitioners contend the trial court erred in concluding that under CR 41(b)(1) the court had no authority to grant the motion after respondents noted the case for trial, regardless of how long respondents' action had been inactive. We affirm.

Respondents Wallace sued petitioners in 1987. After petitioners filed their answer, neither petitioners nor respondents took any further action for six years. *fn1 When petitioners finally moved to dismiss the case for want of prosecution, respondents noted the case for trial. The trial court declined to dismiss the case, concluding that, under CR 41(b)(1) and Snohomish County v. Thorp Meats, 110 Wash. 2d 163, 750 P.2d 1251 (1988), the court had no authority to dismiss the case after respondents had noted the matter for trial.

I. CR41(b)(1) AND THORP MEATS

(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. CR 41(b) (emphasis added). A. Inherent authority Notwithstanding the unambiguous and mandatory language of CR 41(b)(1), petitioners contend the trial court had the "inherent authority" to consider and grant their motion to dismiss for want of prosecution. The interpretation of CR 41(b)(1) suggested by petitioners was squarely rejected by this court in Thorp Meats. After the civil case in Thorp Meats had seen no action of record for more than a year, the clerk notified the plaintiff that the action would be dismissed if no action was taken within 30 days. The plaintiff noted the matter for trial. In response, one of the defendants moved for dismissal. The trial court granted the motion to dismiss. The Court of Appeals reversed, holding that CR 41(b)(1) prohibited dismissal. Thorp Meats, 110 Wash. 2d at 165. We affirmed.

We first noted that "[a] court of general jurisdiction has the inherent power to dismiss actions for lack of prosecution, but only when n no court rule or statute governs the circumstances presented." Thorp Meats, 110 Wash. 2d at 166-67 (emphasis added) (footnote omitted) (citing State ex rel. Dawson v. Superior Court, 16 Wash. 2d 300, 304, 133 P.2d 285 (1943)). We also noted 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." Thorp Meats, 110 Wash. 2d at 167. Therefore, 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 [version of CR 41(b)(1)] 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. Thorp Meats, 110 Wash. 2d at 168 (quoting Gott v. Woody, 11 Wash. App. 504, 507, 524 P.2d 452 (1974)). Finally, we concluded 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. Thorp Meats, 110 Wash. 2d at 168-69. Our rejection of the "inherent authority" argument was similarly unequivocal.

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. Thorp Meats, 110 Wash. 2d at 170 (emphasis added). *fn2

B. Earlier cases Petitioners suggest that this interpretation of our opinion in Thorp Meats is incompatible with earlier cases that we have not overruled. The cases relied on by petitioners- Dawson, 16 Wash. 2d 300; Bishop v. Hamlet, 58 Wash. 2d 911, 365 P.2d 600 (1961); and Peterson v. Parker, 151 Wash. 392, 275 P. 729 (1929)-predate our adoption of the current version of CR 41(b)(1). The provision barring dismissal when an action has been noted for trial was added to the rule in 1967. Thorp Meats, 110 Wash. 2d at 167-68. It was not necessary for our Thorp Meats decision to overrule old cases that have been superseded by a significant change in the rule they interpret. C. "Dilatoriness of a type not described by CR 41(b)"

Petitioners erroneously rely on a passage in Thorp Meats which addresses a trial court's inherent authority to dismiss cases as a sanction for violations of other court rules, orders, and calendar settings. In Thorp Meats, we observed that "this interpretation [of CR 41(b)(1)] 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." Thorp Meats, 110 Wash. 2d at 169. Petitioners suggest the respondents' failure to prosecute for a period longer than the applicable statute of limitations amounts to such "dilatoriness." We disagree. *fn3 "Dilatoriness of a type not described by CR 41(b)(1)" refers to unacceptable litigation practices other than mere inaction, whatever the duration. This is readily apparent from Gott v. Woody, 11 Wash. App. at 508, the authority we cited as support for the quoted passage. Thorp Meats, 110 Wash. 2d at 169.

In Gott, the Court of Appeals reached the same Conclusion as our later opinion in Thorp Meats, holding that CR 41(b)(1) operates as a limitation on the otherwise discretionary authority of trial courts to dismiss actions for want of prosecution. Gott, 11 Wash. App. at 507. The Gott court ...


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