No. 26359-2-III.The Court of Appeals of Washington, Division Three.
March 25, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 99-2-02908-8, Robert N. Hackett, Jr., J., entered June 29, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Sweeney, C.J., and Thompson, J. Pro Tem.
KORSMO, J.
After eight years of inactivity and three previous efforts to dismiss for want of prosecution, the Yakima County Superior Court dismissed Donald and Carol Mills’ action against Les Schwab Tire Centers, Inc., for want of prosecution. They appeal, claiming that they did not receive the latest notice of intent to dismiss and that there was sufficient activity to defeat the motion. The trial court did not abuse its discretion. Accordingly, we affirm the order of dismissal.
Appellants own land next to a Les Schwab Tire facility in Yakima. They alleged that Les Schwab parked trucks on their property, damaging their ability to lease it to other commercial interests. They contacted an attorney who prepared a complaint in 1997, but did not file the document until 1999. In 2002, and again in 2004 and 2005, the Clerk of Superior Court filed Notices of Intent to Dismiss for
Want of Prosecution due to inactivity in the court file. In each instance counsel for the Mills family filed requests for trial setting. No trial dates were ever scheduled.
The process repeated itself in the spring of 2007. The Clerk mailed, for the fourth time, notice of intent to dismiss for want of prosecution to Mills’ counsel. Nine days later counsel filed a notice of intent to withdraw, effective April 20. The trial court dismissed the matter on May 23 after finding that no party had taken any action of record.
Through new counsel, appellants filed a motion to vacate the dismissal order. They contended that their original attorney failed to tell them about the motion to dismiss. The trial court denied the motion to vacate. This appeal followed.
A trial court’s decision to deny a motion to vacate an order of dismissal is reviewed for manifest abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). Discretion is abused when a court bases its decision on untenable grounds or untenable reasons. Olver v. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007).
Appellants first contend that they did not receive notice of the motion to dismiss and argue that the record does not reflect that their original counsel ever received it. The Clerk wrote that copies of the motion were mailed to counsel for both sides. It is reasonable to infer that counsel received the notice since he filed his motion to withdraw shortly thereafter. Notice to counsel is notice to the client. Sweeny v. Sweeny, 43 Wn.2d 542, 548, 262 P.2d 207 (1953).
While appellants contend that they never received notice from their counsel, they have provided no information from their former attorney. There is no indication from counsel whether he did or did not receive the notice from the Clerk. There likewise is no indication from counsel about whether or not he notified his clients. If the trial court had found that notice had not been sent, it would have been required to grant the motion to vacate. CR 41(b)(2)(B). The trial court made no such finding.
The appellants also argue that original counsel’s notice of withdrawal constituted “an action of record” that defeated the Clerk’s motion to dismiss. CR 41(b)(2)(A) provides that a motion to dismiss for want of prosecution must be denied when “a party takes action of record or files a status report with the court indicating the reason for inactivity and projecting future activity and case completion date.” The phrase, “action of record,” has not been defined in this state. Washington law suggests that the phrase means activity that advances a case toward completion.
The rule itself provides that noting a case for trial or scheduling discovery is sufficient to defeat a motion to dismiss. CR 41(b)(2)(A); CR 41(b)(2)(C). The case law provides an additional example. Filing an affidavit of prejudice against a judge constitutes an action of record Landberg v. State, 36 Wn. App. 675, 676 P.2d 1027 (1984). All of these actions suggest that the case is heading forward toward trial or settlement.
In contrast, the withdrawal of counsel from a languishing case does nothing to further resolution of the case. Rather, it suggests desuetude. The trial court might understandably conclude that there was no reason to think the matter would ever progress.
The trial judge may well have granted the motion to vacate if he was convinced the case now was truly going forward. He did not. Discretion exercised as a reasoned choice of alternatives is unlikely to be reversed. The case had languished for eight years and had been the subject of three prior motions to dismiss. On this record, we cannot conclude that the trial court abused its discretion in ruling as it did.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and THOMPSON, J. PRO TEM concur.