Opinion
May 6, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Where local court rule provided that motion to prevent dismissal for failure to prosecute be filed within 30 days of notice sent by court and court, in granting such motion, ordered plaintiff to set trial date within 30 days, but failed to give notice of action on motion to plaintiff, subsequent order dismissing case for failure to set trial within 30 days was erroneous, even though, had plaintiff attended hearing on its initial motion to prevent dismissal, which was rendered unnecessary by court's earlier granting of motion, plaintiff would have learned that motion had been granted with trial setting deadline. Rules of Civil Procedure, rule 41(b)(2).
C. J. Berardini, William J. Convery, Michael H. Argall, Denver, for plaintiff-appellant.
Robert W. Hansen, Denver, for defendant-appellee.
ENOCH, Judge.
Plaintiff appeals from a judgment of the district court denying his motion to reinstate his personal injury action which had been dismissed for failure to prosecute. We reverse.
On October 13, 1972, plaintiff filed a complaint seeking damages for personal injuries alleged to have been sustained as a result of defendant's negligence during an incident which had occurred approximately six years before. The action was filed in the Second Judicial District which has adopted a local rule that where there is no evidence of progress in a case for at least 12 months, a notice shall issue to the parties requiring them to file a motion to show cause why the case should not be dismissed for failure to prosecute. On October 29, 1973, the parties received such a notice stating that the case would be dismissed unless a sworn statement was filed within 30 days giving good and sufficient cause for not dismissing.
An appropriate motion was filed by plaintiff on November 28, 1973, which included a request to allow the parties to set the matter for trial within 30 days. Apparently on that same date plaintiff also sent defendant notice to set a hearing on this motion for December 6, though this does not appear from the record. Nevertheless, on the same day on which plaintiff's motion was filed the court granted it and ordered the case to remain on the active docket, but provided that if plaintiff failed to set the case for trial in 30 days the case would be dismissed pursuant to the local rule without further notice. No notice of this order was given to either party.
On December 6, the date on which plaintiff had noticed defendant in for a hearing on the motion filed November 28, defendant appeared and was informed of the court's action in granting the motion on November 28. However, because of oversight on the part of counsel, neither plaintiff nor his counsel appeared at the hearing. On December 28 the court found that plaintiff had failed to set the matter for trial within 30 days and ordered the case dismissed without prejudice. On January 16, 1974, plaintiff filed a motion to reinstate the action. This was denied, as was plaintiff's subsequent motion for new trial, and this appeal was taken.
It is plaintiff's contention that the court failed to give notice of its order granting plaintiff's motion, and its order dismissing the action, and that it was not until early January that he learned what had happened. Plaintiff admits that had counsel appeared on December 6 they would have learned of the initial order, but says that the failure to appear was 'inadvertent.' He further argues that notice is specifically required of an order granting or denying the motion opposing dismissal.
C.R.C.P. 41(b)(2) permits the court to dismiss with prejudice actions not prosecuted or brought to trial with due diligence 'after reasonable notice by the court pursuant to rules adopted by it.' The Second Judicial District Rule 21 provides in pertinent part:
'(a) Involuntary Dismissal by the Court. Periodically, but not less than annually, the clerk of the court shall furnish the presiding judge a list of cases pending in which no progress has been made or order entered of record for the previous twelve months or more. The clerk shall give notice to each attorney of record and to each party not represented by counsel is every such case.
(b) Notice. The notice shall require the parties to file a motion setting forth good and sufficient cause why the case should not be dismissed for lack of prosecution. Such notice shall set a date for the filing of the motion and shall be mailed at least thirty days prior to the date set forth in the notice for the filing of such motion.
(c) Action Based on Motion. If such notice has been given and such motion has been timely filed, the court, after the time allowed for filing of such motion, shall consider the motion, and, in its discretion, without a hearing, enter an order denying the motion and dismissing the case, without prejudice, or enter an order granting the motion. All parties shall be notified of such order by the clerk of the court.'
The trial court complied with both its local rule and C.R.C.P. 41(b)(2) in providing notice that the case would be dismissed unless cause should be shown otherwise. However, the court failed to notify either party of its order reinstating the case as required by Rule 21. Therefore, plaintiff was unaware that his motion had been granted on November 28 and that the additional time limit of 30 days imposed by the court order for a trial setting was running from that date. A court is required to adhere to its own published rules. Schleining v. Estate of Sunday, 163 Colo. 424, 431 P.2d 464. Since Rule 21 allows the court, in its discretion, to rule on a motion to prevent dismissal without a hearing and since the court did so here, the hearing which plaintiff arranged for December 6 was unnecessary.
We do not overlook the fact that had plaintiff's counsel appeared at the hearing on December 6 he would have learned that his motion had already been granted and that further action was required of him. We do not condone such laxness on the part of counsel. However, for purposes of this appeal we must assume that, had the court given the required notice, counsel would have acted and his client would not have been deprived of his day in court.
The judgment is reversed and the cause remanded with directions to reinstate the complaint and for the setting of a trial date.
KELLY, J., concurs.
SMITH, J., specially concurs.
SMITH, Judge (specially concurring):
I concur with the result reached by the majority.
However, I cannot, in good conscience, premise an order reinstating the complaint solely on the failure of the trial judge to advise plaintiff's counsel that his request for relief from the involuntary dismissal rule had been granted.
The purpose of the involuntary dismissal rule is not automatically to reduce case loads. It is a mechanism to terminate those cases wherein the parties no longer desire to proceed as evidence by their non-action. Here, it is apparent that the plaintiff desired to have his case determined.
If fault for the dismissal needs to be assigned by this court it belings, in my view, to counsel who, upon being advised that his client's cause would be dismissed for nonaction, requested that the case not be dismissed and that he be given 30 days to set the same for trial, notice in his opponent to set the request for hearing and then, in apparent indifference, forgot to attend the setting. He likewise failed either to ascertain the status of his request or to attempt to set the case for trial even though he knew that, because the statute of limitations had expired, dismissal would forever terminate plaintiff's rights. It was counsel's total lack of concern for the interests of his client that misled the trial court into believing that plaintiff no longer desired to proceed with the case.
I believe this is a case where the neglect of counsel, while inexcusable, should not be imputed to plaintiff and that we, in order to serve and not defeat the ends of justice, should order a reinstatement of the cause. See CF & I Steel Corp. v. Robb, Colo., 533 P.2d 491 (1975). Coerber v. Rath, 164 Colo. 294, 435 P.2d 228; Dudley v. Keller, 33 Colo.App. 320, 521 P.2d 175.