Snohomish County v. Meats

Williams, J. Mr. and Mrs. Russell Thorp, through their wholly owned company, Thorp Meats, owned a parcel of land in Snohomish County fronting on a river. On July 2, 1979, they gave permission to Fiorito Brothers, Inc., to deposit on this parcel excess fill resulting from a highway construction project being constructed for the state. On August 11, 1980, Snohomish County brought an action against Thorp Meats, seeking an injunction requiring the fill to be removed and the land restored to its previous condition. On October 28, 1980, the County joined Fiorito [14] Brothers as an additional defendant. Nothing further occurred in the case until January 4, 1982, when the County moved for default on the ground that no answer had been filed. Both defendants then filed an answer and the hearing on the default motion was stricken. The case continued to be inactive until July 26, 1983, when the superior court clerk mailed a clerk's notice of dismissal, pursuant to CR 41(b)(2), stating there had been no action of record within the past 12 months and that the case would be dismissed without prejudice unless within 30 days either (a) action of record was made, or (b) written application was made showing good cause for continuing the matter as a pending case. On August 8, 1983, the County filed a note for trial setting for August 23, 1983. Fiorito Brothers then moved for dismissal of the case under CR 41, noting such motion for a hearing the same day. On August 23, 1983, the deputy prosecutor representing the County went to the office of the court administrator and secured a trial date of February 9, 1984. The parties then had a hearing on the motion for dismissal. The court granted the dismissal as to all parties with prejudice. The County appeals. The issue is whether a trial court has authority to dismiss a civil action with prejudice for want of prosecution when the plaintiff fails to note the case for trial within 1 year after issues have been joined, but has noted it for trial before a hearing on a motion to dismiss. CR 41(b) provides: (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 [15] 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. The County contends that CR 41(b)(1) applies. The action should not have been dismissed, much less with prejudice, because the County noted the case for trial before the hearing on the motion. Thorp Meats and Fiorito Brothers contend that CR 41(b)(1) does not apply, and that the court's order of dismissal was proper under its inherent power or because of the first paragraph of CR 41(b) quoted above. Historically, the courts have had the inherent authority to dismiss an action for want of prosecution. Langford v. Murphey, 30 Wash. 499, 500, 70 P. 1112 (1902). This inherent power was recognized and codified in Rule for Admission to Practice 3, 193 Wash. 40-a (1938), reading: Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff or cross-complainant shall neglect to note the action for trial or hearing within one 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 notice to the adverse party. The rule was construed in State ex rel. Lyle v. Superior Court, 3 Wn.2d 702, 705-06, 102 P.2d 246 (1940) as follows: Our intention in adopting the above-quoted rule is to be deduced from what we said. We may amend or repeal that rule, but, until we do, the rule is a part of the written law of this state, which litigants are presumed to know and with which they must comply. Rules which may be deemed directory merely may be disregarded; but where, in establishing rules, the court has not reserved therein the right of exercise of discretion, those rules cannot justifiably be disregarded—there is no room for the exercise of discretion. The mandatory provision of the rule is that any civil action shall be dismissed, without prejudice, if the plaintiff or cross-complainant fail to note the action for trial [16] or hearing within one year after any issue of law or fact has been joined. That provision is subject to the qualification "unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss." The qualification accentuates, places in bold relief, the mandatory provision for dismissal of the action if not noted for trial or hearing within the time specified unless the party moving dismissal caused the delay. In 1967 the rule was amended to add the qualification, "If the case is noted for trial before the hearing on the motion, the action shall not be dismissed." CR 41(b)(1), 71 Wn.2d xci (1967). In Gott v. Woody, 11 Wn. App. 504, 507, 524 P.2d 452 (1974) the court said and we agree that this 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. Thus, where a motion for dismissal for want of prosecution is occasioned by the inaction of the plaintiff (or other party having the affirmative of an issue) in bringing the case on for trial, the trial court may not dismiss on that ground where the cause is noted for trial before the hearing on the motion. The introductory sentence in CR 41(b) is simply that and does not alter the force of the plain language which follows. Reversed and remanded for trial. Coleman, J., concurs.