{ "id": 1590321, "name": "COTTONWOOD ENTERPRISES, a California limited partnership, Plaintiff-Appellant, v. Mark McALPIN, Barbara McAlpin, and Territorial Abstract and Title Company, Defendants-Appellees", "name_abbreviation": "Cottonwood Enterprises v. McAlpin", "decision_date": "1989-10-26", "docket_number": "No. 18199", "first_page": "78", "last_page": "81", "citations": [ { "type": "official", "cite": "109 N.M. 78" }, { "type": "parallel", "cite": "781 P.2d 1156" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "63 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776285 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "460" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nm/63/0457-01" ] }, { "cite": "85 N.M. 351", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776117 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0351-01" ] }, { "cite": "107 N.M. 113", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597128 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "114" }, { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0113-01" ] }, { "cite": "105 N.M. 316", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598945 ], "weight": 4, "pin_cites": [ { "page": "319" }, { "page": "1363" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0316-01" ] }, { "cite": "77 N.M. 207", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807099 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0207-01" ] }, { "cite": "81 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363277 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "377", "parenthetical": "Rule 1-041(E) \"is not self-executing but requires the timely filing of a motion for its operation\"" }, { "page": "393", "parenthetical": "Rule 1-041(E) \"is not self-executing but requires the timely filing of a motion for its operation\"" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0376-01" ] }, { "cite": "103 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711330 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "48", "parenthetical": "determining that a written request for a jury trial, properly submitted to the court subsequent to defendant's 1-041 motion to dismiss but prior to the hearing, should be considered in evaluating whether plaintiff is actively pursuing his case" }, { "page": "993", "parenthetical": "determining that a written request for a jury trial, properly submitted to the court subsequent to defendant's 1-041 motion to dismiss but prior to the hearing, should be considered in evaluating whether plaintiff is actively pursuing his case" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0045-01" ] }, { "cite": "75 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5376987 ], "weight": 13, "year": 1965, "pin_cites": [ { "page": "222-23" }, { "page": "957" }, { "page": "222" }, { "page": "956" }, { "page": "222-23" }, { "page": "957", "parenthetical": "citations omitted" }, { "page": "222" }, { "page": "956-57" }, { "page": "222" }, { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0219-01" ] }, { "cite": "83 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332459 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "697" }, { "page": "1093" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0690-01" ] } ], "analysis": { "cardinality": 587, "char_count": 11608, "ocr_confidence": 0.745, "pagerank": { "raw": 9.856528248389436e-08, "percentile": 0.5342865549304225 }, "sha256": "7226850855e2d402d4c9d2f22d93663f4c3986ddd438024ed241d80c51e0c88a", "simhash": "1:136eed2f197dd7d8", "word_count": 1914 }, "last_updated": "2023-07-14T16:43:28.780053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LARRABEE, J., and STEVE HERRERA, District Judge (sitting by designation), concur." ], "parties": [ "COTTONWOOD ENTERPRISES, a California limited partnership, Plaintiff-Appellant, v. Mark McALPIN, Barbara McAlpin, and Territorial Abstract and Title Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nBACA, Justice.\nPlaintiff appeals the dismissal of its claim based on an SCRA 1986, 1-041(E) motion to dismiss for inactivity, arguing that the trial court\u2019s grant of the motion constituted abuse of discretion. Plaintiff also contends that dismissal pursuant to defendants\u2019 SCRA 1986, 1-012(B)(6) motion for failure to state a claim upon which relief can be granted and defendants\u2019 SCRA 1986, 1-012(B)(7) motion for failure to join a necessary party would have been erroneous. We reverse the trial court\u2019s grant of the 1-041(E) motion, which dismissed the cause with prejudice for inactivity, and remand to the trial court for consideration of defendants\u2019 other motions and for trial, if required.\nFACTS\nPlaintiff filed its initial complaint in this action, alleging misrepresentation, negligence and breach of warranty arising out of a contract for the sale of realty and title services rendered in connection with the sale of property against defendants Mark and Barbara McAlpin (McAlpins) and Territorial Abstract and Title Company (Territorial). The action was originally filed on April 20, 1983.\nImmediately subsequent to filing the action, plaintiff engaged in a flurry of activity, filing, among other things, motions for injunctive relief and responses to defendants\u2019 motions. It promptly requested trial settings several times, and appeared to be actively pursuing its case. However, after approximately a year and a half of activity, plaintiff\u2019s case lay fallow for over two years. In September 1986, defendants filed a motion to dismiss for inactivity, which was denied on August 11,1987. The case was subsequently transferred to Judge Maes\u2019 court, and on July 15, 1988, plaintiff filed a request for a trial setting. Judge Maes granted the request and set trial for October 27, 1988. On July 28th, the McAlpins filed a second motion to dismiss for lack of prosecution, as well as second motions to dismiss pursuant to 1-012(B)(6) and (7). Defendants also moved to vacate the trial setting. On October 12th, a hearing was held on the motions, at which plaintiff chose not to appear. Judge Maes granted the motion to dismiss for inactivity pursuant to 1-041(E).\nOn this appeal, we consider two issues: (1) whether the trial court abused its discretion by granting defendants\u2019 motion to dismiss, and (2) whether the dismissal was proper pursuant to the trial court\u2019s inherent discretion to dismiss a cause of action for inactivity. We reverse the order of the trial court granting defendants\u2019 1-041(E) motion to dismiss for lack of diligence in bringing the matter to a conclusion, and remand for a consideration of defendants\u2019 motions and trial.\nI. DID THE TRIAL COURT ABUSE ITS DISCRETION BY GRANTING THE 1-041(E) MOTION TO DISMISS?\nSCRA 1986, 1-041(E)(1) provides that, in a civil action, \u201cwhen it shall be made to appear to the court that the plaintiff ... 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 ..., any party to such action or proceeding may have the same dismissed with prejudice____\u201d\nIn considering a 1-041(E) motion, a district court \u201cshould determine, upon the basis of the court record and the matters presented at the hearing, whether such action has been timely taken by the plaintiff, ... and, if not, whether he has been excusably prevented from taking such action. State ex rel. Reynolds v. Molybdenum Corp. of America, 83 N.M. 690, 697, 496 P.2d 1086, 1093 (1972). The trial court has discretion to determine a motion to dismiss for inactivity, and its decision will not be reversed except for abuse of discretion. Id.\nPlaintiff first contends that the district court abused its discretion, because plaintiff had diligently attempted to bring its cause to a final determination. In support of this argument, plaintiff identifies the two motions it filed for a trial setting in 1983 and 1984, defendants\u2019 reluctance to submit responsive pleadings, various motions plaintiff filed in 1987 and 1988, the filing of its first amended complaint in 1988, and its third request for a trial setting in July 1988. The facts of this case do not require us to determine whether plaintiff\u2019s actions constituted adequate activity to satisfy 1-041(E), because we find plaintiff\u2019s second argument is meritorious. However, it bears stating that plaintiff\u2019s conduct in pursuing its case was not a model of trial practice to be followed by other members of the bar. It should be noted that plaintiff\u2019s counsel on appeal was not plaintiff\u2019s trial counsel. If not for plaintiff having been granted a trial date prior to the granting of the motion to dismiss, as discussed infra, defendants had very strong grounds on which to argue for dismissal.\nPlaintiff argues that, because it had filed for and been granted a trial date prior to the district court\u2019s grant of the motion to dismiss, it had been actively pursuing a final determination, and therefore the district court abused its discretion. We agree, and remand for further consideration.\nIn Martin v. Leonard Motor-El Paso, 75 N.M. 219, 222-23, 402 P.2d 954, 957 (1965), this court determined that when a plaintiff has made a written motion to set a date for trial, preliminary activities leading toward a trial need not be considered for a determination that the plaintiff is actively pursuing its cause. The court interpreted Rule 1-041(E) to be satisfied \u201cwhen the requisite action is taken to bring the case to its final determination,\u201d even if the mandatory period has expired. Id. at 222, 402 P.2d at 956. It is necessary for the defendant to \u201cinvoke his right to compel a dismissal\u201d by filing a written motion to dismiss, prior to plaintiff actively bringing the case to trial. Id. As the court stated:\n[T]he defendant may not sleep upon such rights and permit a party to continue prosecution of a case which is subject to being dismissed upon motion, expending both time and money, and particularly to take action to bring the case to its final determination, and then press for a dismissal ____ [I]t cannot be denied that the filing of the motion for a trial setting on the merits amounted to action by the plaintiff to bring the case to its final determination, and that such action came before the defendant elected to invoke his right to dismissal.\nId. at 222-23, 402 P.2d at 957 (citations omitted). See also Jones v. Montgomery Ward & Co., 103 N.M. 45, 48, 702 P.2d 990, 993 (1985) (determining that a written request for a jury trial, properly submitted to the court subsequent to defendant\u2019s 1-041 motion to dismiss but prior to the hearing, should be considered in evaluating whether plaintiff is actively pursuing his case); Baca v. Burks, 81 N.M. 376, 377, 467 P.2d 392, 393 (1970) (Rule 1-041(E) \u201cis not self-executing but requires the timely filing of a motion for its operation\u201d); Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 77 N.M. 207, 421 P.2d 123 (1966).\nWhat constitutes activity bringing a case to a final determination must be decided considering the facts of each case. Martin, 75 N.M. at 222, 402 P.2d at 956-57. Thus, the filing for a trial date does not per se mandate that the 1-041 motion must be denied. See, e.g., Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct.App.1986) (although plaintiff had filed a motion for a trial setting, the motion was over eleven years old when defendant moved to dismiss, and the circumstances indicated that plaintiff was not actively bringing his case to trial).\nIn the instant case, however, plaintiff moved the district court for a trial setting, and was granted a setting, prior to defendant\u2019s second motion to dismiss. Although we do not wish to condone plaintiff\u2019s failure to appear at the hearing held on the motion, his irresponsibility did not warrant dismissal for inactivity. Judge Maes had other weapons in her judicial arsenal with which to reprimand the plaintiff; however, dismissal was not the appropriate sanction. Ultimately, plaintiff did file for a trial setting, thereby acting to bring the case to a conclusion and saving itself from a likely dismissal. Although defendants are correct in stating that a plaintiff has an affirmative duty to bring the case to a conclusion and cannot rest on motions for trial settings that are not being acted upon by the court, see Stoll, 105 N.M. at 319, 731 P.2d at 1363, defendants waited too long to assert their position. They should not have waited to file their second 1-041(E) motion until after plaintiff had moved for and been granted a trial setting. See Martin, 75 N.M. at 222, 402 P.2d at 957. As this court has stated: \u201c[T]he rights afforded by the rule are intended to expedite the prosecution of litigation in our courts....\u201d Id. In the present case, this policy has been achieved through the granting of a trial setting. Id. Defendants should not have sat on their rights while plaintiff satisfied Rule l-041(E)\u2019s requirements, and their subsequent motion to dismiss was too late.\nDefendants maintain that the order dismissing the case was merely a reconsideration of the original denial of their motion to dismiss, and that Judge Maes properly reconsidered Judge Kaufman\u2019s denial of the motion. Defendants contend that, because the order was entered without a hearing or finding of fact to support its conclusion, it was contrary to court rules and subject to reconsideration. However, our review of the record indicates that the matter of reconsideration of the earlier motion was not raised before Judge Maes at the hearing on the second motion to dismiss. We therefore find that defendants\u2019 contention is without merit.\nII. WAS IT WITHIN THE DISTRICT COURT\u2019S INHERENT POWERS TO DISMISS FOR INACTIVITY?\nIt is within a trial judge\u2019s inherent power to dismiss a cause of action for failure to prosecute, independent of any statutory authority. Gathman-Matotan Architects & Planners, Inc. v. State, 107 N.M. 113, 114, 753 P.2d 892, 893 (1988); Smith v. Walcott, 85 N.M. 351, 512 P.2d 679 (1973). Such an order will be reviewed for abuse of discretion. Pettine v. Rogers, 63 N.M. 457, 460, 321 P.2d 638, 640 (1958).\nMcAlpins contend that it was within Judge Maes\u2019 inherent authority to dismiss, and that she did not abuse her discretion. Nevertheless, as discussed above, a trial setting had been obtained by plaintiff from Judge Maes. Given that circumstance, dismissing the case pursuant to the district court\u2019s inherent authority constituted abuse of discretion.\nCONSIDERATION OF THE 1-012(B)(6) AND (7) MOTIONS\nBoth plaintiff and defendants agree that the district court did not consider defendants\u2019 motions filed pursuant to SCRA 1986, 1-012(B)(6) and (7). Accordingly, we make no decision regarding the merits of these motions and remand the cause of action to the district court for consideration. See SCRA 1986, 12-201.\nIT IS SO ORDERED.\nLARRABEE, J., and STEVE HERRERA, District Judge (sitting by designation), concur.", "type": "majority", "author": "BACA, Justice." } ], "attorneys": [ "Sommer, Udall & Hardwick, P.A. Jack N. Hardwick, Santa Fe and Wade H. Hover, Los Gatos, Cal., for plaintiff-appellant.", "Moses, Dunn, Beckley, Espinosa & Tut-hill, P.C., Jon H. Tuthill, Albuquerque, for defendant-appellee Territorial Abstract.", "Scheuer & Engel, P.C., Richard S. Lees, Santa Fe, for defendants-appellees the McAlpins." ], "corrections": "", "head_matter": "781 P.2d 1156\nCOTTONWOOD ENTERPRISES, a California limited partnership, Plaintiff-Appellant, v. Mark McALPIN, Barbara McAlpin, and Territorial Abstract and Title Company, Defendants-Appellees.\nNo. 18199.\nSupreme Court of New Mexico.\nOct. 26, 1989.\nAs Amended Oct. 30, 1989.\nRehearing Denied Nov. 15, 1989.\nSommer, Udall & Hardwick, P.A. Jack N. Hardwick, Santa Fe and Wade H. Hover, Los Gatos, Cal., for plaintiff-appellant.\nMoses, Dunn, Beckley, Espinosa & Tut-hill, P.C., Jon H. Tuthill, Albuquerque, for defendant-appellee Territorial Abstract.\nScheuer & Engel, P.C., Richard S. Lees, Santa Fe, for defendants-appellees the McAlpins." }, "file_name": "0078-01", "first_page_order": 114, "last_page_order": 117 }