*1 M. SMITH Steven Toni Smith, Appellants,
R. STRATTON, Appellee.
Barbara B.
No. S-4153.
Supreme Court Alaska. 26, 1992.
June Dittman, Kelly,
John C. Cossman & As- sociates, Anchorage, appellants. Hanson, Longacre, Ramona Michael J. S. Anchorage, appellee. C.J., RABINOWITZ,
Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
RABINOWITZ,
Justice.
Chief
INTRODUCTION
dismissal
the is-
appeal
This
of a
raises
savings
Alaska’s
sue
whether
applies is refiled within
an action which
being dismissed for failure
one
after
superior court
prosecute.
finding
complaint,
that it was
statute of limitations
time-barred
statute,
09.-
and that Alaska’s
10.240,
apply.
did not
*2
H63
notice,
rejected
estoppel
taking
position
also
the Smiths’
the
the
that informal
arguments against application of the stat-
attempts at
by
parties
settlement made
the
ute of limitations.
prosecution
constituted sufficient
In response,
superior
case.
the
court en-
AND PROCEEDINGS
FACTS
3, 1988,
tered an
denying
order on March
1984,
30,
On November
Barbara Stratton
dismissal under
stating
Rule
and
that
car, injuring
rear-ended Toni Smith’s
Smith
the case would
require-
be dismissed if the
Through
in the
lawyer,
accident.
their
the
16.1(g)
ments of Civil Rule
were not satis-
attempted
negotiate
Smiths
to
a settlement
by
1,1988.2
fied
June
Neither Stratton nor
Allstate
Company,
with
Insurance
Strat-
copy
Allstate received a
of the order. No
comply
ton’s insurer.
In order to
with the
further action was taken on the case and
limitations,
year
two
statute of
the Smiths
24, 1988,
on
superior
June
court dis-
an action
supe-
filed
Stratton
complaint
missed the
prej-
Smiths’
without
28,
rior court
1986. On
October
October
udice.
1986,
granted
request
the Smiths
Allstate’s
dismissal,
for an
After the
negotia-
indefinite extension of time in which
settlement
parties
to file an answer since the
tions continued. The
were
Smiths retained new
attempting
negotiate
action,
including
a settlement.
In counsel and refiled the
1987,
by
Smith’s car
two other
was rear-ended
Yu
Allstate insureds in their com-
Son,
plaint3,
April
and in
Andrea
on
Again,
Waldon collided
1989.
Allstate
passenger.
requested
with a car in which
a
Smith was
and received an unlimited exten-
by
Son and Waldon
All-
sion of time in
were both insured
which to answer the new
complaint.
compli-
Eventually, negotiations
state. The two later accidents both
broke
negotiations
cated and slowed settlement
down and the Smiths asked that Allstate
Allstate, particularly
complaint.
with
on the issue
answer the
damages.
Toni Smith’s
Thereafter,
summary
Stratton moved for
15, 1988,
January
judgment,
requesting
On
the clerk of the
superior court issued a Civil Rule 41 Notice
court dismiss the
because
why
expired
Show Cause
Smiths’ action the statute of limitations had
be-
not
prose-
should
be dismissed for want of
fore
opposi-
was refiled.
tion,
attorney responded
cution.1 The Smiths’
argued
the Smiths
that Alaska’s sav-
41(e) provides:
complaint,
Civil Rule
the summons and
the case shall be
transferred to the inactive calendar
Dismissal Want of Prosecution. Actions
pending
promptly
which have been
in a court for more
clerk of the court. The clerk shall
any proceedings having
one
than
without
notify
writing
counsel in
of the transfer. All
may
been taken
be dismissed as a matter of
cases which remain on the inactive calendar
course,
prosecution, by
for want of
the court
dismissed,
days
for more than 60
shall be
party
on its own motion or on motion of a
(1)
period:
proper
unless within that
A
mo-
pending
action. The
the
cases
clerk shall review all
filed;
(2)
set
tion to
trial
certificate is
or
semi-annually
and in all cases in which
good
the court on
a
motion
cause orders
proceedings
no
have been taken for more
case continued
a
inactive calendar for
year,
than one
the court shall hold a call of
period
specified additional
of time. Notwith-
the calendar or the clerk shall send notice to
41(b),
standing Civil Rule
the dismissal does
parties
writing why
the
action should
to show cause in
operate
adjudication upon
not
as an
the mer-
good
be
not
dismissed. If
cause
previous
been en-
its unless
dismissal has
contrary
to the
is not shown at a call of the
rule,
tered
the court under this
or
days
or
calendar
within 30
of distribution of
41(a)(1).
parties
or
under Civil Rule
notice,
the court shall dismiss the action.
under this rule is filed
If
case dismissed
may
The clerk
paragraph
dismiss actions under this
may
again, the court
make such order for the
party
opposed
aif
has not
dismis-
payment
previously dis-
of costs of the case
prosecution
sal. A dismissal for want of
may
proper,
may stay
as it
deem
missed
prejudice
without
unless the court states in
proceedings
party
in the case until the
prej-
the order that the case is dismissed with
complied with the order.
udice.
16.1(g)
2. Civil Rule
reads:
against both Son and Waldon were
3.The
cases
Inactive Calendar and Dismissal. Where a
subsequently
prejudice
July
motion to set trial and certificate have not
3, 1990,
January
respectively.
days
been filed within 270
after the service of
applicability
statute de-
refiling of the case
ings
allowed
phrase
pends
interpretation
on the
and, alterna-
year of dismissal
within one
“upon
the trial
estopped from
tively, that
Stratton
Legis-
limitations because
assert that the Alaska
asserting the statute of
Oregon savings
adopted
lature
result-
requested extensions which
Allstate
*3
rely
City
v.
Fairbanks
Schaible
formally prose-
ed in the Smiths’ failure
legislature
proposition
for the
that the
also
dismis-
consequent
and the
cute the action
Oregon
interpre-
adopted the
common law
claim
Stratton.
sal of their
201, 207
tation of the statute. 375 P.2d
summary
superior
granted
The
court
(Alaska 1962).6
regard
In this
the Smiths
ap-
and this
judgment
Stratton’s behalf
argue
Oregon
interpreta-
that the
courts’
peal followed.4
adopted with the statute and
tions were
that,
therefore,
interpretation
of the
v.
Tel. Tel. Co.
statute White
&
Pacific
STAT-
I. DOES THE ALASKA SAVINGS
371,
193,
controls. 168 Or.
123 P.2d
195
UTE,
09.10.240,APPLY TO CASES
(Or.1942),
Safeway
overruled
Fuller v.
FOR FAILURE TO
DISMISSED
131,
Stores, Inc., 258 Or.
same are dismissed after com Developments in the Law: Statutes of mencement of trial. Nor does it make Limitations, 63 Harv.L.Rev. distinguish (1950). sense to a dismissal which is appeal entered after a notice of has been Ness, Stratton relies on Groseth v. subsequent from
filed one which occurs (Alaska 1966), proposition P.2d 624 for the appeal of the submission its merits or misrepresen- that there must be reliance on Thus, argument. one which occurs at oral tation or false statements for es- applies we conclude that AS 09.10.240 to all toppel. Stratton asserts that Groseth dismissed, actions have been other which closely resembles the instant case. Gro- merits, than on their at both the trial court seth, however, distinguished can be be- appellate court levels.8 plaintiff cause the had not filed a suit when expired
the statute of limitations
and the
II. MAY
any
DEPENDANT WHO HAS failure to file suit was not a result of
REQUESTED AN INDEFINITE EX-
agreement
parties.
between the
TENSION, RESULTING IN A DIS-
Sweeney
In
Ins.
Gudenau & Co.
FOR FAILURE
MISSAL
TO PROSE- Co.,
plaintiff
we held that a
who fails to
CUTE, RELY
THE
ON
STATUTE OF
limitations
file suit within the statute of
LIMITATIONS TO DISMISS THE RE-
protected by equitable estoppel if
may be
FILED CLAIM?
plaintiff
postpone
has been induced to
rely
equity
argu-
filing
by
in their
the defendant’s words or con
Smiths
suit
fundamentally
ment that
it is
unfair for
duct. 736
adjudication
operate as an
on the
of the statute is "to avoid the bar of the statute
“does not
diligent plaintiff
previous
of limitations for a
ly
whose time-
en-
unless a
dismissal has been
merits
objection
has been
over his
dismissed
by
rule.” Rule 16.-
tered
the court under this
without a determination on the merits.” 494
require
1(g)
empowers the court to
further
that "[t]here
P.2d at 430. The court also noted
impose
stay
payment
of costs and to
policy
denying
reason for
the bene-
is a distinct
paid
proceedings
are
when the
until the costs
plaintiff
fit of the statute to a
who has
dismissal under the rule.
case is refiled after
claim to be
inaction allowed his
41(e)
Additionally,
provides
Rule
that a case
prosecution.”
n. 1.
want of
postpone prosecution concurs. an extension request ton’s indefinite BURKE, J., part, concurs in dissents Thus, hold that file an answer. we time to part. eq application all conditions for three COMPTON, Justice, concurring. estoppel are satisfied: Stratton uitable claims her and bene aware of the that Alaska’s Sav- concludes not delay because she was fited from Statute, 09.10.240, applies all ings required attorney an to answer to retain dismissed, which have wheth- actions been good acted in appellate trial court or court level. er at the granting Allstate extensions faith *5 dispositive agree. I Since this issue is of time to answer.9 case, there is no reason address the case the instant estopped A similar situation to equitably Stratton is whether Co., King v. occurred in State asserting of the statute from the defense Reefer (Alaska 1976), the state where opinion P.2d I express limitations. no wheth- of stipulation Nelco entered into a and New analysis agree er I with the court’s and to an- extending the state’s time in which on this issue. conclusion complaint this court the until after swer decision, case. our pending After BURKE, Justice, part, decided in dissenting, answer, asserting that the filed its state concurring, part. in to sue and that capacity Nelco lacked New opinion join part in II the court’s I of of limitations had run. We therefore, concur, disagree, result. I if the had filed its that state concluded however, opinion. part with I of the required, time New Nelco at the answer First, to decide the issue there no need opportunity remedy had the would have Second, part I think I. discussed of capacity its before the statute lack wrong. holding part plainly Using I is Therefore, held had run. we limitations reasoning Oregon Supreme estoppel the assertion barred Stores, Inc., Safeway Fuller v. Court defense. of the statute limitations (1971), I 481 P.2d 258 Or. CONCLUSION inapplicable in the hold AS 09.10.240 would ac- applies 09.10.240 Alaska Statute at bar. case prosecute. for failure to tions dismissed Thus, court’s we conclude action on
dismissal of
grounds it the two that was barred magnitude inconsistency, taking "precludes party position, estoppel Quasi from has position he or she asserted position a previously inconsistent with one and whether first where render knowledge taken circumstances facts. Id. full position second unconsciona- assertion of the for Stratton to re- Here it is unconscionable Inc., Util. ble.” Jamison Consolidated quest receive extensions time to two estoppel Quasi does and then assert answer party require ignorance or reliance not claiming estoppel. benefited from of limitations. Allstate determining quasi Id. because Allstate did not the extension time issues, whether estoppel a court should consider attorney pay to file the to retain and for an have position party the inconsistent answer. produced a the first detriment benefited