Wallace v. Evans , 131 Wash. 2d 572 ( 1997 )

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.¹ 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 Wn.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. CR 41(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 Wn.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 no court rule or statute governs the circumstances presented.” Thorp Meats, 110 Wn.2d at 166-67 (emphasis added) (footnote omitted) (citing State ex rel. Dawson v. Superior Court, 16 Wn.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 Wn.2d at 167. Therefore,

[i]t 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 Wn.2d at 168 (quoting Gott v. Woody, 11 Wn. 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 Wn.2d at 168-69. Our rejection of the "inherent authority” argument was similarly unequivocal.

[W]here 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 Wn.2d at 170 (emphasis added).²

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 Wn.2d 300; Bishop v. Hamlet, 58 Wn.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 Wn.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 "[t]his 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 Wn.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.³ "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 Wn. App. at 508, the authority we cited as support for the quoted passage. Thorp Meats, 110 Wn.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 Wn. App. at 507. The Gott court also rejected an argument similar to the arguments advanced by petitioners.

We do not believe, as defendants contend, that this interpretation will seriously invade the discretionary power of the Superior Court to manage its affairs, so as to achieve the orderly and expeditious disposition of cases, to assure compli-anee with the court’s rulings and observance of hearing and trial settings which are made. In these areas the trial court’s inherent discretion is not questioned by our interpretation. See Wagner v. McDonald, 10 Wn. App. 213, 516 P.2d 1051 (1973) (dismissal for want of prosecution where plaintiff failed to appear at trial). See also Link v. Wabash R.R., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962); (FRCP 41) (dismissal where failure to appear at pretrial conference was combined with general dilatoriness).

Gott, 11 Wn. App. at 508. Our citation to this portion of Gott in our Thorp Meats opinion clearly shows that "dilatoriness of a type not described by CR 41(b)(1)” refers to something other than mere lack of prosecution.

D. Other provisions of CR 41(b)

Finally, petitioners point out that CR 41(b), CR 41(b)(1), and CR 41(b)(2) each have independent significance. However, contrary to petitioners’ argument, our interpretation of CR 41(b)(1) in Thorp Meats does not render CR 41(b) or CR 41(b)(2) superfluous. CR 41(b) recognizes the trial court’s authority to dismiss cases as a sanction for " 'other types of failure to prosecute, such as abandonment at trial, or failure to attend on the trial date.’ ” Thorp Meats, 110 Wn.2d at 169 (quoting 4 Lewis H. Orland, Washington Practice, Rules Practice § 5502, at 241 (3d ed. 1983)). CR 41(b)(2) directs the superior courts to dismiss, on a clerk’s own motion, any cases in which there has been no action of record for one year. Neither of these provisions is rendered superfluous by our interpretation of CR 41(b)(1) which prohibits dismissal for want of prosecution after an action has been noted for trial.

II. OTHER ARGUMENTS

A. The statute of limitation

Respondents’ action was inactive for a period longer than the applicable statute of limitation. Petitioners suggest that an interpretation of CR 41(b)(1) that prevents such an action from being dismissed conflicts with the policy of the statute of limitation. However, because this action was filed within the applicable limitations period, the statute of limitation does not actually apply. In the absence of any ambiguity in the language of CR 41(b)(1) or our Thorp Meats opinion, petitioners’ policy argument is unhelpful.

B. Equal protection

Petitioners argue that an interpretation of CR 41(b)(1) which permits civil claims to remain inactive longer than the applicable statute of limitations violates constitutional guarantees of equal protection. Petitioners have cited no applicable legal authorities. Petitioners’ argument is based on extremely careless assumptions that (i) defendants facing inactive civil claims are "similarly situated” with potential defendants who have not actually been sued, and (ii) there is no rational basis for treating these classes differently. We reject such insubstantial constitutional arguments as " ' "naked castings into the constitutional sea. . . .” ’ ” State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (quoting In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S. Ct. 900, 27 L. Ed. 2d 819 (1971))).

C. Other jurisdictions

Petitioners suggest that our interpretation of CR 41(b)(1) in Thorp Meats is at odds with every other American.jurisdiction. Petitioners cite cases from more than 20 other states where similarly stagnant cases were dismissed for want of prosecution. Unfortunately for petitioners, our version of CR 41(b)(1) expressly forbids involuntary dismissal of actions that have been noted for trial. Petitioners have cited no cases involving civil rules with provisions sufficiently similar to Washington’s apparently unique prohibition on dismissal of cases that have been noted for trial.

Petitioners further suggest that our interpretation of CR 41(b)(1) would make Washington a unique "safe haven” for dilatory plaintiffs. We find this objection to be somewhat melodramatic. Only defendants who allow claims to lie dormant and take no affirmative steps to dispose of such claims will find themselves in petitioners’ situation.⁴ Noting a case for trial provides only a short-term respite for dilatory plaintiffs. Once the matter is noted for trial, the trial court may refuse to change the trial date and may dismiss the action if the plaintiff is not ready to proceed. Furthermore, courts have other tools to compel plaintiffs to prosecute civil actions in a timely manner.⁵

Affirmed.

Durham, C.J., and Dolliver, Smith, Guy, Madsen, and Alexander, JJ., concur.

1 it is not clear how this case avoided a CR 41(b)(2) dismissal on clerk’s motion for over six years. Petitioners suggest this case "fell between the cracks.” Pet’rs Br. 21 n.2.

2 Justice Goodloe’s dissent further reinforced the clear meaning of our decision. "Under the majority’s analysis, a plaintiff can always avoid a dismissal under CR 41(b)(1) simply by noting a case for trial.” Thorp Meats, 110 Wn.2d at 170 (Goodloe, J., dissenting).

3 "The suit does not sleep; we wake it up, we air it, we walk it about. That’s something.” Charles Dickens, Bleak House 559 (Signet Classic 1964) (1853).

4 Petitioners object to the suggestion that they had any obligation to move this litigation toward resolution. If a defendant is willing to permit a lawsuit to remain unresolved indefinitely, such a defendant has no obligation to do anything. But, unlike CR 41(h)(2) (dismissal on clerk’s motion), CR 41(b)(1) is not self executing. A defendant must affirmatively request a dismissal for want of prosecution under this rule. Petitioners have only themselves to blame for not seeking such a dismissal sooner.

Cases cited by petitioners stand for the proposition that the defendant’s inaction does not excuse a plaintiff’s failure to timely prosecute an action. See Hol-moe v. Reuss, 403 N.W.2d 30, 31 (S.D. 1987); Lake Meredith Reservoir Co. v. Amity Mat. Irrigation Co., 698 P.2d 1340, 1344 (Colo. 1985). This consideration would be relevant if the trial court had any authority to dismiss an action that has been noted for trial.

5 CR 41(b)(2) provides for automatic dismissal for want of prosecution. Newer local rules provide mandatory case schedules and may limit a party’s ability to change trial dates. See King County Local Rules 4, 40(e).