Summary
In BA Leasing Corp. v. Board of Assessment Appeals, 653 P.2d 80 (Colo.App. 1982), we held that where there has been an unusual delay in prosecuting an action, prejudice to the defendant will be presumed.
Summary of this case from Richardson v. McFeeOpinion
No. 82CA0042
Decided September 9, 1982.
Appeal from the District Court of Arapahoe County, Honorable George B. Lee, Jr., Judge.
Gorsuch, Kirgis, Campbell, Walker Grover, Stephen Klein, Ann E. DeVine, Vicki J. Fowler, for plaintiff-appellant.
Peter Lawrence Vana, III, James E. Heiser, for defendants-appellees.
J. D. MacFarlane, Attorney General, Billy Shuman, Special Assistant Attorney General, for defendant-appellee Board of Assessment Appeals of the State of Colorado.
Division III.
Pursuant to § 39-8-108(2), C.R.S. 1973 (1981 Cum. Supp.) and § 24-4-106(4), C.R.S. 1973 (1981 Cum. Supp.), plaintiff, BA Leasing Corporation, sought review in the district court of a tax assessment decision made by defendant Board of Assessment Appeals. More than one year after the filing of the complaint, the Arapahoe County defendants moved to dismiss the action for failure to prosecute pursuant to C.R.C.P. 41(b)(1). Plaintiff appeals the trial court's dismissal of the action. We affirm.
Plaintiff contends that the trial court erred in failing to make fact findings as required by C.R.C.P. 41(b)(1). However, the rule requires fact findings only if there has been a trial and the court has rendered judgment against the plaintiff on the merits. Thus, although the trial court did not make fact findings here, there was no error.
The decision whether there has been a failure to prosecute which warrants dismissal lies within the sound discretion of the trial court. Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050 (1961). The burden is on the plaintiff to prosecute a case in due course and without unusual delays. Cervi, supra. In this case, plaintiff slept on its rights for over a year without even filing in the district court the record of the proceedings before the Board. In the absence of mitigating circumstances, this period of inaction is sufficient to justify dismissal of the action.
Plaintiff argues that its diligent attempt to resolve assessment questions in another action concerning the 1980 tax year mitigates its failure to act in this case, which concerns the 1979 tax year. However, movement in another case is irrelevant to this one. The reasons stated by plaintiff as justification for not dismissing the action constitute "a bare conclusion that is insufficient to establish why there had been no action during the preceding year." Radinsky v. Karras, 511 P.2d 953 (Colo.App. 1973) (not selected for official publication).
Plaintiff's contention that defendant must show it was prejudiced is also without merit. It is unnecessary for the party moving to dismiss to show inconvenience or injury suffered by reason of the delay because the law presumes injury from unreasonable delay. Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928). Where, as here, defendant has shown unreasonable delay and plaintiff has failed to show mitigating circumstances, the trial court correctly granted defendant's motion to dismiss for failure to prosecute.
The judgment is affirmed.
JUDGE PIERCE and JUDGE KIRSHBAUM concur.