# Boston v. Buchanan

> Supreme Court of Oklahoma · December 23, 2003 · 75 O.B.A.J. 10

URL: https://www.frixlaw.com/law-library/cases/9788952

## Case

- **Full name:** Melba C. BOSTON and Glen C. Boston, Plaintiffs/Appellants, v. Robert T. BUCHANAN, M.D., and Chester W. Beam, M.D. Individuals; Plastic and Reconstructive Institute; And Saint Anthony Hospital, Oklahoma City, Oklahoma, Defendants/Appellees
- **Court:** Supreme Court of Oklahoma
- **Decided:** December 23, 2003
- **Citations:** 75 O.B.A.J. 10; 89 P.3d 1034; 2003 OK 114; 2003 Okla. LEXIS 132; 2003 WL 22999488
- **Precedential status:** Published
- **Opinion:** Dissent by Boudreau
- **Judges:** Summers, Watt, Hodges, Lavender, Kauger, Boudreau, Hargrave, Winchester, Opala, -Dissents, Edmondson
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BOUDREAU, J.,
with whom OPALA, V.C.J., and LAVENDER and WINCHESTER, JJ., join, dissenting to the denial of rehearing:
¶ 1 I dissent to the Court’s decision to deny rehearing in this ease. In my view, our opinion is flawed in a number of respects, most particularly in the manner in which it interpreted 12 O.S.2001, § 1083. I would grant rehearing and issue another opinion which would, among other things, adopt the interpretation of § 1083 urged by defendants and would discuss the interplay between § 1083 and Rule 9(b), 12 O.S.2001, Ch.2, App., Rules for District Courts.
¶ 2 12 O.S.2001, § 1083 reads as follows:
Any action which is not at issue and in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year shall be dismissed without prejudice by the court on its own motion after notice to the parties or their attorneys of record; providing, the court may upon written application and for good cause shown, by order in writing allow the action to remain upon its docket.
(Emphasis added.) Our opinion interpreted the phrase “at issue” in § 1083 to mean “when issues are made up, or when the defendant has failed to plead within the time allowed by law or by an order of the court.” (Citation omitted.) Boston v. Buchanan, 2003 OK 114, ¶ 7 , 89 P.3d 1034 . Under this interpretation, an action is “at issue” when either (1) an answer is filed and no further pleadings are necessary or (2) when a defendant is in default. Conversely, a case is not “at issue” only when the time for a responsive pleading has not expired. Our opinion has construed § 1083 in a manner such that a dismissal will never occur under the statute.
¶ 3 The defendants correctly contend that this interpretation clearly frustrates the obvious intent of the statute to dismiss stale claims. They make the argument, with which I agree, that § 1083 supplies its own definition of “at issue”. They point out that directly following the language “at issue” is the phrase “and in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year”. Under the interpretation urged by defendants, a notice of intent to dismiss must be sent by the court when a year has passed *1051 without a pleading being filed or other action taken and a motion is not pending during that year. This construction of § 1083 dovetails precisely with Rule 9(b), which provides in part, “[a] court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S.1983 § 1083.”
¶ 4 In a rehearing opinion, I would clarify the interplay between § 1083 and Rule 9(b) to ensure that trial judges throughout the state effectively run their disposition dockets. In my view, § 1083 requires a trial court to identify all cases on his or her docket in which no pleading or motion has been filed or other action taken for a year. The statute then requires the judge to dismiss those cases without prejudice, after notice to the parties, unless a party, upon written application, establishes “good cause” for allowing the case to proceed. Rule 9(b), on the other hand, alloivs a trial judge to identify cases on her docket which she views as not being diligently prosecuted even though there may have been a pleading, motion or other action taken within the year. 1 The rule then allows the trial judge to require the plaintiff to show “good cause” why the action should not be dismissed.
¶ 5 In my view, this case should be reviewed under 12 O.S.2001, § 1083. As provided in § 1083, the trial judge afforded plaintiffs with an opportunity to show “good cause” why the case should not be dismissed. After the trial judge conducted the hearing, he dismissed the case impliedly finding the plaintiffs had failed to establish “good cause” why the case should not be dismissed. The record establishes that the evidence offered by plaintiffs in support of the “good cause” determination consisted solely of counsel’s statements. Plaintiffs failed to offer any competent, admissible evidence. See State v. Torres, 2004 OK 12, ¶ 12 , 87 P.3d 572 (stating counsel’s arguments cannot serve as a substitute for legal proof).
¶ 6 Case law imposes upon the appellate courts the obligation to accord substantial deference to the exercise of discretion by the trial court, and to reverse only if the trial court made a clearly erroneous decision against reason and evidence. Abel v. Tis-dale, 1980 OK 161, ¶20 , 619 P.2d 608, 612 . In addition, plaintiffs, as the appealing party, have the burden of showing by the record that the trial court’s decision was an abuse of discretion. See Meadows v. Wal-Mart Stores, Inc., 2001 OK 25, ¶ 5 , 21 P.3d 48, 50 . In my view, plaintiffs have clearly failed in this regard and I would affirm the trial court’s dismissal of this case under 12 O.S. 2001 , § 1083.
. Rule 9(b) provides in part: "[w]here an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed.” 12 O.S.2001, Ch.2, App., Rules for District Courts, Rule 9(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788952. Public record. Not legal advice.