Opinion
May 14, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Law will presume injury from an unreasonable delay in prosecuting case. Rules of Civil Procedure, rule 41(b)(2).
Sonheim & Helm, Robert H. Sonheim, Arvada, Haney, Howbert & Akers, Roger D. Hunt, Colorado Springs, for plaintiff-appellant.
Robert Dunlap, Colorado Springs, for defendants-appellees.
COYTE, Judge.
Plaintiff filed a lien foreclosure suit against defendant Henry A. Hoder and Don Collins on December 23, 1964. Hoder filed an answer and cross-claim against co-defendant Collins on January 12, 1965. Plaintiff took a default judgment against Collins on January 26, 1965. There was no further activity in the file until March 13, 1973, when defendant Hoder's attorney filed a motion to dismiss the cause with prejudice and to release lis pendens. He alleged in his motion that defendant Hoder had died and that delay in diligent prosecution had irreparably prejudiced defendant. The court, with consent of plaintiff, allowed Betty Marie Hoder, executrix of the estate of Henry A. Hoder, deceased, to be substituted as a defendant in lieu of Henry A. Hoder. Plaintiff on April 13, 1973, filed a notice to set date for pretrial conference. After hearing on the motion to dismiss, the court dismissed plaintiff's complaint with prejudice and ordered the release of the notice of lis pendens.
Plaintiff on appeal contends that the court made no finding of wilful default and thus erred in dismissing plaintiff's complaint. We affirm.
C.R.C.P. 41(b)(2) provides that 'actions not prosecuted or brought to trial with due diligence may be dismissed with prejudice after reasonable notice by the court pursuant to rules adopted by it.' The proper application of this rule is set forth in Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995, wherein the court stated:
'It is a well established rule in Colorado that a trial court may dismiss an action for failure to prosecute. Yampa Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928). This inherent power rests in the sound discretion of the trial court but it is not an unlimited authority. Where there are facts that serve as mitigating circumstances for the delay, they should be considered by the court and dismissal denied upon a proper showing.'
The only testimony offered by plaintiff was that of one of its attorneys who attempted to justify the eight-year lack of progress in the case by asserting that there had been efforts to settle the case. That attorney testified that over the period of eight years he had had several phone calls with defendants' attorney regarding settlement and the possibility of transferring the case to El Paso District Court for trial. He had also written to the clerk of the district court concerning a trial setting and was advised by the clerk of the date the trial judge would be available for setting, but the attorney did not appear for any setting.
On this record, the trial court found that:
'. . . Plaintiff has not prosecuted this case with the required degree of diligence and that there is nothing in the evidence presented by the plaintiff which constitutes either a satisfactory excuse for, or sufficiently mitigating circumstances to justify, this lack of diligence.'
The evidence clearly gives substantial support to this finding.
Plaintiff further claims that there is no evidence to support the court's finding that the death of Henry A. Hoder was prejudicial to the defense of the claim by his executrix. However, the law will presume injury from unreasonable delay. Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717.
Under these circumstances, the trial court did not abuse its discretion in dismissing plaintiff's complaint.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.