"Failure to timely order a transcript constitutes a waiver of the right to a transcript." SDCL 15-26A-49; Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986). Where an appellant waives the right to a transcript by failing to order it, the only review which can take place "is a review of that portion of the record which was before the circuit court."
Id. See, e.g., Greyhound Corp. v. Estevez, 360 So.2d 41 (Fla.Dist.Ct.App. 1978); Shields v. Moore, 352 So.2d 139 (Fla.Dist.Ct.App. 1977); Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla.Dist.Ct.App. 1977); Metropolitan Transit Authority v. Porter, 328 So.2d 573 (Fla.Dist.Ct.App. 1976). Two recent South Dakota cases, Duncan, supra, and Reed et al. v. Heath et al., 383 N.W.2d 873 (S.D. 1986), support defendant's position in this matter. When the motion to dismiss was made in Duncan, more than eight years had passed since the action was initiated, and more than five years had elapsed since all the information for trial was available.
Our cases have found the following were insufficient evidence of good cause: communication among a plaintiff and plaintiff's counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiff's failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett v. American Honda Motor Co., Inc., 548 N.W.2d 798, 804 (S.D. 1995); difficulty in finding an expert witness and settlement activity which expired a year prior to dismissal, Id; and illness and death of defendants' original counsel and further inaction by defendants' counsel's law firm, Reed v. Heath, 383 N.W.2d 873, 874 (SD1986). Swenson v. Sanborn County Farmers Union Oil Co., 1999 SD 61, ¶ 16, 594 N.W.2d 339, 344. Jenco has failed to show good cause for its delay and therefore fails to show that the trial court abused its discretion by dismissing under SDCL 15-11-11 for failure to prosecute.
ing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines," Id. (citing Holmoe, 403 N.W.2d at 23). [¶ 16] We have found the following to not be good cause for delay: communication among a plaintiff and plaintiff's counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiff's failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett, 548 N.W.2d at 804; difficulty in finding an expert witness and settlement activity which expired a year prior to dismissal, Id; and illness and death of defendants' original counsel and further inaction by defendants' counsel's law firm, Reed v. Heath, 383 N.W.2d 873, 874 (SD 1986). [¶ 17] The mere passage of time is not the test to determine if an action should be dismissed.
SDCL 15-2-13(3). Compare Annett, 1996 SD 58 ¶¶ 17-19, 548 N.W.2d 798 (no formal file activity for over one year and no informal activity for over two years — dismissed without prejudice); Du-Al Mfg. Co. v. Sioux Falls Const. Co., 444 N.W.2d 55 (S.D. 1989) (inexcusable activity for 12 years); Holmoe v. Reuss, 403 N.W.2d 30 (S.D. 1987) (four year delay in prosecution); Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986) (no file activity for over two years, and no other excusable reasons given). [¶ 23] For these reasons, I respectfully dissent.
Hence, Holmoe's underlying rationale must be examined before its needless expansion in this case. Holmoe cites Reed v. Heath, 383 N.W.2d 873 (S.D. 1986), which stated that the ultimate responsibility for presenting an adequate record on appeal falls on the appellant. 403 N.W.2d at 33.
Initially, it must be noted that the record before us does not contain a transcript from the trial court. Accordingly, the record on appeal is confined to those pleadings and papers transmitted from the circuit court. Reed v. Heath, 383 N.W.2d 873, 874 (S.D. 1986); Pearson v. Adams, 279 N.W.2d 674, 676 (S.D. 1979). DECISION ISSUE I
Pearson v. Adams, 279 N.W.2d 674 (S.D. 1979). See also Reed v. Heath, 383 N.W.2d 873 (S.D. 1986). A trial court must be permitted to correct its error or a reviewing court will not review it on appeal. State v. King, 400 N.W.2d 878, 880 (S.D. 1987) (citing Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D. 1980)).