opinions/mds/heerman120904.htm 18:16:05 GMT --> Heerman v. State

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IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Thomas P. Heerman,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030205-CA
 

F I L E D
(December 9, 2004)
 

2004 UT App 463

 

-----

Eighth District, Duchesne Department

The Honorable A. Lynn Payne

Attorneys: Mitchell R. Barker, Nampa, Idaho, for Appellant

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Orme.

JACKSON, Judge:

    This case involves Thomas Heerman's petition for post-conviction relief under the Post-Conviction Remedies Act, Utah Code sections 78-35a-101 to -110 (1996) and rule 65C of the Utah Rules of Civil Procedure. Heerman appeals the trial court's dismissal for failure to prosecute. We affirm.

    "In reviewing a trial court's decision to dismiss for failure to prosecute, we accord the trial court broad discretion and do not disturb its decision absent an abuse of discretion and a likelihood that an injustice has occurred." Hartford Leasing Corp. v. State, 888 P.2d 694, 697 (Utah Ct. App. 1994).

    To determine whether to dismiss for failure to prosecute, a court "look[s] to factors besides the mere elapse of time" and considers

at least five additional factors: (1) "the conduct of both parties"; (2) the opportunity available to each party to move the case forward; (3) what each party has accomplished in moving the case forward; (4) the difficulty or prejudice imposed on the opposing party by reason of the delay; and (5) "most important, whether injustice may result from the dismissal."

Id. at 697-98 (quoting Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975)). "Application of these factors . . . requires consideration of the 'totality of the circumstances' in order to determine '[w]hether delay is a ground for dismissal of an action.'" Id. at 698 (quoting Country Meadows Convalescent Ctr. v. Utah Dep't of Health, 851 P.2d 1212, 1215 (Utah Ct. App. 1993)) (other quotations and citations omitted) (alteration in original).

    In reviewing these factors we cannot conclude that the trial court abused its discretion in dismissing Heerman's case. The trial court found that Heerman had the capacity to advance the case because (1) he was represented by counsel for significant periods of time; (2) he could communicate effectively with counsel; and (3) the court had granted him authority to take depositions. Despite this capacity, Heerman failed to make any substantive progress in the case for three years. The court found that he failed to take the authorized depositions and, "[e]arly on in this case [Heerman] made a conscious decision to keep this case on hold while he concentrated on issues before the Board of Pardons."

    Heerman claims that much of his delay is excused because the State had stipulated to postpone this case while he resolved his concurrent case before the Board of Pardons. However, the trial court found that it had never accepted the stipulation(1) and that the delay proposed by the stipulation was contrary to the court's express direction at the June 18, 2001 hearing that Heerman continue with the case.

    Heerman also claims that injustice will result from dismissal. Indeed, the question of injustice is the "'most important'" factor, Hartford, 888 P.2d at 698 (quoting Westinghouse, 544 P.2d at 879), but we have held that "'[e]ven where a trial court finds facts indicating that injustice could result from the dismissal of [a] case, it can dismiss when a plaintiff has had more than ample opportunity to prove his [or her] asserted interest and simply failed to do so,'" Rohan v. Boseman, 2002 UT App 109,28, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002) (quoting Country Meadows, 851 P.2d at 1216) (other quotations and citation omitted) (second and third alterations in original). Here, the trial court did not abuse its discretion in determining that no significant injustice would result from dismissal because Heerman had sufficient opportunity to advance the case and chose to delay it as a matter of strategy.

    We affirm.

______________________________

Norman H. Jackson, Judge

 

-----

WE CONCUR:

______________________________

Pamela T. Greenwood, Judge

______________________________

Gregory K. Orme, Judge

1. See Charlie Brown Constr. Co. v. Leisure Sports Inc., 740 P.2d 1368, 1371 (Utah Ct. App. 1987) ("[A] trial court is not necessarily bound by a mere stipulation between the parties which has not been incorporated in an order where the stipulation attempts to wrest from the court control of its own calendar.").

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opinions/mds/heerman120904.htm 18:16:05 GMT -->