{
  "id": 707469,
  "name": "Esteban M. JIMENEZ, Petitioner, v. WALGREENS PAYLESS and the Travelers Insurance Company, Respondents",
  "name_abbreviation": "Jimenez v. Walgreens Payless",
  "decision_date": "1987-09-03",
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  "provenance": {
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  "casebody": {
    "judges": [
      "SCARBOROUGH, C.J., and STOWERS and WALTERS, JJ., concur."
    ],
    "parties": [
      "Esteban M. JIMENEZ, Petitioner, v. WALGREENS PAYLESS and the Travelers Insurance Company, Respondents."
    ],
    "opinions": [
      {
        "text": "OPINION\nSOSA, Senior Justice.\nOn October 4, 1984 the trial court, on its own initiative, dismissed the workman\u2019s compensation complaint which had been filed by Esteban M. Jimenez (Jimenez). In a memorandum opinion the court of appeals affirmed the trial court and Jimenez filed a petition for issuance of a writ of certiorari to the court of appeals. We granted certiorari, and upon review of the petition, the court of appeals\u2019 file, and the record below, we reverse the court of appeals.\nFACTS\nJimenez filed his complaint on February 9, 1981. The answer was filed on March 2, 1981. The next pleading to appear in the record is signed by Jimenez\u2019s attorney and captioned \u201cRequest For Hearing,\u201d bearing the filing date of January 6, 1983, and showing a hearing date of February 9, 1983. Under the heading, \u201cSpecific matters) to be heard,\u201d the document reads \u201cDefendant\u2019s Motion to Dismiss.\u201d\nBelow the listing on the civil docket sheet showing Jimenez\u2019s request for hearing, the following appears: \u201cFeb. 1. Subpoena Duces Tecum Issued To [a certain doctor] on February 9, 1983 requested by [Jimenez\u2019s attorney] * * * Subpoena Duces Te-cum Issued To [another witness], on February 9,1983 at 9:00 a.m. requested by [Jimenez\u2019s attorney].\u201d No copies of the subpoenas appear in the district court\u2019s file.\nThe next document appearing in the district court\u2019s file is again entitled \u201cRequest For Hearing,\u201d again signed by Jimenez\u2019s attorney; this time dated June 29, 1983, and this time showing a hearing date of July 14, 1983 for argument on defendant\u2019s motion to dismiss. The next pleading of record is captioned \u201cMotion To Vacate,\u201d signed by Jimenez\u2019s attorney, requesting that the court \u201cvacate the setting of July 14, 1983 and as grounds therefore states that counsel has a conflict of commitments and cannot be present for the July 14, 1983 setting.\u201d This pleading was duly recorded on the civil docket sheet, as was the trial court\u2019s order granting the motion to vacate.\nThe next document in the court\u2019s file dated October 4, 1984, and captioned \u201cOrder,\u201d reads as follows: \u201cThis matter came before the court upon periodic review of all open case files. After examination of the present record, the court finds that the Plaintiff has taken no steps to bring this matter to a final resolution within a reasonable period of time and that, therefore, this matter should be dismissed.\u201d The order was issued without the court\u2019s having given Jimenez notice or opportunity for a hearing. Nor does the record explicitly inform us as to whether the motion to dismiss specified in the two requests for hearing filed by Jimenez pertains to the court\u2019s order of dismissal, or whether the subject motion was filed on different grounds. Thus, we cannot tell from the record whether the defendant ever asked the court to dismiss the action on the grounds stated in the court\u2019s order of October 4, 1984.\nJimenez, having retained new counsel, filed his \u201cMotion for Relief From Order of Dismissal\u201d on January 9, 1986, relying on SCRA 1986, 1-060. On August 22, 1986, the trial court denied this motion, and the present appeal resulted.\nISSUES RAISED ON APPEAL\nAlthough the trial court\u2019s order did not specify which rule of civil procedure, if any, it relied on in dismissing Jimenez\u2019s case, the nature of the order leads us to believe that the court relied on SCRA 1986, 1-041(E) (known as Rule 41(e)). The court of appeals, in its memorandum opinion of November 4, 1986, cites cases pertinent to that rule. The principal case upon which we must rely in resolving the issue before us is State ex rel. Reynolds v. Molybdenum Cory, of Am., 83 N.M. 690, 496 P.2d 1086 (1972), in which this court, by lengthy analysis, addressed itself to \u201c[t]he multitudinous problems with the application of this rule [Rule 1-041(E) ], the rule\u2019s productivity of disputes and consequent appeals, and, in our opinion, the many injustices worked by the application of this court\u2019s constructions of the rule * * * * \u201d Id. at 693, 496 P.2d at 1089.\nIn State ex rel. Reynolds v. Molybdenum Cory, of Am. we held that Rule 1-041(E) \u201ccontemplates a hearing upon a motion to dismiss at which the parties may present evidence on the issue of whether [quoting from the previous codification of the rule] \u2018 * * * the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least three [3] years after the filing of said action or proceeding or of such cross-complaint * * * \u2019 \u201d 83 N.M. at 697, 496 P.2d at 1093. Thus, if the trial court relied for its order of dismissal on the stated rule, it erred by not allowing a hearing at which the parties could have presented evidence.\nFurther, if Rule 1-041(E) is the basis of the trial court\u2019s order of dismissal, Reynolds stands for the proposition that a party\u2019s filing of requests for discovery constitutes sufficient action to avoid dismissal under the rule. See Annot., 32 A.L.R. 4th 840, 876 (1984). Here the record shows that Jimenez attempted some form of discovery by requesting subpoenas for two witnesses. What the result of this request was we cannot tell, for the trial court\u2019s civil docket sheet and its file are too vague to inform us. Fundamental justice, however, prohibits us from making Jimenez suffer from this vagueness. It is clear that Jimenez made some effort within three years of the filing of his complaint to further the prosecution of his case toward a final determination.\nThe court of aj peals in its memorandum opinion also states, \u201cit was not necessary for defendants to file a motion to dismiss or for the court to hold a hearing on the matter,\u201d citing as authority the cases of Pettine v. Rogers, 63 N.M. 457, 321 P.2d 638 (1958) and Mora v. Hunick, 100 N.M. 466, 672 P.2d 295 (Ct.App.1983). We disagree with the court of appeals\u2019 reliance on these two cases. First of all, to the extent that Pettine v. Rogers was not overruled by Reynolds, 83 N.M. at 697, 496 P.2d at 1093, the case before us presents the additional issue of the trial court\u2019s failure to rely on its own local rules, in particular, on Rule 43, \u201cDismissal of Cases,\u201d which states in pertinent part:\n(b) If an examination of the court file shows that no substantial activity has occurred in the action for a period of six (6) months or more, the action will be dismissed for lack of prosecution upon the following procedure:\n1. the court shall issue an Order to Show Cause why the action should not be dismissed; and\n2. the parties shall have ten (10) days within which to respond, in person or in writing, as the court may determine.\nN.M.Loc. & Fed.Rules Handbk. Issue 18 (Nov.1986), First Judicial District, Rule 43. Here no order to show cause was issued, and the parties were thus not given the opportunity to respond as required by the local rule.\nWe thus conclude that the court of appeals was in error to hold in its memorandum opinion that, \u201c[t]he trial court has inherent power to dismiss a cause for failure to prosecute independent of any statute or rule.\u201d To the extent that such a proposition is based on the ruling in Pettine v. Rogers, it is at odds with Reynolds, and thus invalidated by our holding in that case.\nWe reverse the court of appeals and instruct the trial court to vacate its order of dismissal and reinstate Jimenez\u2019s case on the court\u2019s active docket for such further proceedings as are not inconsistent with our ruling herein.\nIT IS SO ORDERED.\nSCARBOROUGH, C.J., and STOWERS and WALTERS, JJ., concur.",
        "type": "majority",
        "author": "SOSA, Senior Justice."
      }
    ],
    "attorneys": [
      "Houston L. Morrow, Santa Fe, for petitioner.",
      "Walgreens Payless, pro se.",
      "The Travelers Ins. Co., pro se."
    ],
    "corrections": "",
    "head_matter": "741 P.2d 1377\nEsteban M. JIMENEZ, Petitioner, v. WALGREENS PAYLESS and the Travelers Insurance Company, Respondents.\nNo. 16769.\nSupreme Court of New Mexico.\nSept. 3, 1987.\nHouston L. Morrow, Santa Fe, for petitioner.\nWalgreens Payless, pro se.\nThe Travelers Ins. Co., pro se."
  },
  "file_name": "0256-01",
  "first_page_order": 296,
  "last_page_order": 299
}