C.r.c.p. 41
C.r.c.p. 41
Recent Annotations Court order granting voluntary dismissal under section (a)(2) is reviewed for an abuse of discretion. And the court did not abuse its discretion in granting plaintiff's request to voluntarily abandon its condemnation proceeding because the defendants could assert their counterclaims in a separate pending declaratory judgment action and therefore were not prejudiced by the dismissal. Sinclair Transp. Co. v. Sandberg, 2014 COA 75M, __ P.3d __ [published July 3, 2014]. Annotation I. General Consideration. Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Trials: Rules 38-53 ", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For note, "Comments on Last Clear Chance-Procedure and Substance", see 32 Dicta 275 (1955). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For note, "One Year Review of Civil Procedure", see 41 Den. L. Ctr. J. 67 (1964). For article, "Federal Practice and Procedure", which discusses a recent Tenth Circuit decision dealing with conversion of a motion to dismiss into a motion for summary judgment, see 62 Den. U. L. Rev. 220 (1985). Annotator's note. Since sections (a) and (b) of this rule are similar to § 184 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Under section 184 of the former Code of Civil Procedure, which was supplanted by this rule, the plaintiff, where no counterclaim had been set up in the answer, was entitled to dismiss his action. Tabor v. Sullivan, 12 Colo. 136, 20 P. 437 (1888); Long v. McGowan, 16 Colo. App. 540, 66 P. 1076 (1901); Doll v. Slaughter, 39 Colo. 51, 88 P. 848 (1907); Colo. Util. Corp. v. Pizor, 99 Colo. 294, 62 P.2d 570 (1936). It was within the discretion of the court to dismiss the plaintiff's suit without prejudice, where motion for dismissal was made before trial and no counterclaim had been filed. Denver & Rio Grande Ry. v. Cobley, 9 Colo. 152, 10 P. 669 (1886); Schechter v. Denver, L. & G. R. R., 8 Colo. App. 25, 44 P. 761 (1896); Teller v. Sievers, 20 Colo. App. 109, 77 P. 261 (1904); Miller v. East Denver Mun. Irrigation Dist., 83 Colo. 406, 266 P. 211 (1928). A dismissal without prejudice is not a final order for purposes of appellate review. Bock v. Brody, 8870 P.2d 530 (Colo. App. 1993). The court may dismiss a claim without prejudice at the close of plaintiff's evidence if it concluded that indispensable parties have not been included. Bock v. Brody, 870 P.2d 530 (Colo. App. 1993). Standard in ruling on motion to dismiss shall be considered. In ruling on a motion to dismiss, the standard is not whether the plaintiff established a prima facie case, but whether judgment in favor of defendant is justified on the evidence presented. Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Gapter v. Kocjancic, 703 P.2d 660 (Colo. App. 1985); Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992). Water court did not err in requiring applicants for conditional rights of exchange to establish more than a prima facie case at mid-trial to avoid judicial fact finding and dismissal pursuant to section (b) when no other rule or statute alters the application of said section in regard to this matter. Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992). "Motion for directed verdict" is motion to dismiss. When the court is the trier of fact, a motion denominated a "motion for directed verdict" is actually a motion to dismiss pursuant to section (b) of this rule. Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Gapter v. Kocjancic, 703 P.2d 660 (Colo. App. 1985). Rule as basis for jurisdiction. See Lurvey v. Phil Long Ford, Inc., 37 Colo. App. 11, 541 P.2d 114 (1975); Bd. of County Comm'rs v. City & County of Denver, 190 Colo. 347, 547 P.2d 249 (1976). Applied in Lehman v. Williamson, 35 Colo. App. 372, 533 P.2d 63 (1975); Webermeier v. Pace, 37 Colo. App. 546, 552 P.2d 1021 (1976); People v. In Interest of D.A.K., 198 Colo. 11, 596 P.2d 747 (1979); Romero v. Rossmiller, 43 Colo. App. 215, 603 P.2d 964 (1979); Hanks v. Green, 44 Colo. 80, 607 P.2d 1034 (1980); Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980); People ex rel. MacFarlane v. Delaware Corp., 626 P.2d 1144 (Colo. App. 1980); Rossmiller v. Romero, 625 P.2d 1029 (Colo. 1981); Fish v. Charnes, 652 P.2d 598 (Colo. 1982); Crocker v. Colo. Dept. of Rev., 652 P.2d 1067 (Colo. 1982); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982); Lucero v. Martin, 660 P.2d 902 (Colo. 1983); Foothills Meadow v. Myers, 832 P.2d 1097 (Colo. App. 1992). II. Voluntary Dismissal. A. By Plaintiff. Law reviews. For article, "What Divorce Statutes Are Now in Effect in Colorado?", see 21 Dicta 68 (1944). By the salutary provisions of this rule, a plaintiff is given the right to dismiss a first suit at an early stage. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). A party that obtains a voluntary dismissal of its claims subject to terms and conditions to which it consistently maintains its objections may challenge those terms and conditions as legally impermissible or as an abuse of discretion on appellate review. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). An action may be dismissed prior to answer or motion for summary judgment. An action may be dismissed by notice, without court order, at any time before the adverse party files an answer or motion for summary judgment. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969); Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Filing of motion under rule 12(b)(2) alleging lack of subject matter jurisdiction does not bar plaintiff from filing of notice to dismiss under rule 41(a)(1). Burden v. Greeven, 953 P.2d 205 (Colo. App. 1998). Determination of the terms and conditions of dismissal under section (a)(2) is discretionary with the trial court and will not be disturbed on review absent an abuse of that discretion. Section (a)(2) expressly gives the court power to grant a motion for dismissal under the rule upon such terms and conditions as the court deems proper. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). Under this section, payment of costs is a condition to a dismissal by a plaintiff. Scofield v. Scofield, 89 Colo. 409, 3 P.2d 794 (1931). A requirement for payment of attorney fees and expenses as a term or condition of an order granting voluntary dismissal of a claim may be imposed without evidence and findings satisfying the requirements of § 13-17-102(5) and C.R.C.P. 11.Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). When a voluntary motion to dismiss is with prejudice, there is no authority to condition the granting of the motion upon the payment of attorney fees. Groundwater Appropriators of the S. Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22 (Colo. 2003). The party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). Award of attorney fees and expenses are not precluded by the special nature of water right adjudication proceedings. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994); Application of Hines Highlands P'ship, 929 P.2d 718 (Colo. 1996). Plaintiff may do so without prejudice and with no terms or conditions attached thereto. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). Section (a)(2) is intended to give the right to dismiss a claim that may later become viable or may be asserted later in a different forum, provided that the defendant will not be unfairly prejudiced. The purpose of the rule is different from the objectives of § 13-17-102(5) and C.R.C.P. 11, which are intended to protect a plaintiff from imposition of attorney fees upon dismissal of an unmeritorious claim provided that the plaintiff seeks dismissal promptly after learning that the claim cannot prevail. Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994). A plaintiff need do no more than file a notice of dismissal with the clerk; that document itself closes the file, and the court has no role to play; there is not even a perfunctory order of court closing the file. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). The filing of a notice to dismiss, even pending actual transfer to court of proper venue, is effective. Since the transferor court, until the certification and actual transfer of the case to a different venue, has physical control over the files, the clerk of the transferor court may accept the filing of an answer and place it in the file, and the filing of a notice to dismiss, pending the actual transfer of the proceedings to a court of proper venue, is likewise effective. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). The action stands dismissed without an order of court. Where defendant has not interposed any cross-complaint or answer and plaintiff seeks to dismiss the proceeding, then upon the filing of the dismissal, the action stands dismissed without order of court, and the court errs in declining to dismiss the case. Chamberlain v. Chamberlain, 108 Colo. 538, 120 P.2d 641 (1941). By filing a notice to dismiss, the court's jurisdiction does not immediately terminate for all purposes. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). Plaintiff's voluntary dismissal does divest a court of jurisdiction to grant defendant's motion to dismiss plaintiff's claims. Alpha Spacecom, Inc. v. Hu, 179 P.3d 62 (Colo. App. 2007). Appropriate orders may be entered. The filing of the notice of dismissal closes the file, but the trial court may enter appropriate orders subsequent to the notice, as practical considerations must prevail. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). When a plaintiff has once dismissed, a second dismissal operates as an adjudication on the merits. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). This rule also protects a defendant by providing that if the plaintiff takes advantage of his right of early dismissal on one occasion, he may not repeat the process with impunity. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). Where the answer filed in a state court is after the first notice of dismissal and before a second notice of dismissal in a federal court, then at the time the answer is filed, defendant cannot have anticipated that a notice of dismissal would subsequently be filed in the federal court, and so, because the right to invoke the "double dismissal" rule does not arise until after defendant's answer is filed in the state court and since the answer is not directed to the federal court complaint, the filing thereof does not constitute a waiver of defendant's right to move for dismissal, as it would on the basis of the rule. A defendant cannot invoke the right prior to the filing of the second notice of dismissal, because the right does not exist, nor can he logically waive a right prior to the time it comes into existence. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). Dismissal order held not to contravene this rule. Hilliard v. Klein, 124 Colo. 479, 238 P.2d 882 (1951). When from the very nature of the transaction the intent to preserve the right to sue other tortfeasors is apparent, the intent of a written agreement to release some of the joint tortfeasors will be given the same effect as if it were a pure covenant not to sue; there is to be a dismissal as to such parties and a preservation of the right to continue the action with respect to the remaining defendants where it is clear that the intent of the plaintiff is to preserve any rights the plaintiff might have to recover against the remaining defendants. Farmers Elevator Co. v. Morgan, 172 Colo. 545, 474 P.2d 617 (1970). Stipulated judgment of dismissal held final. Where the parties to litigation, dealing at arm's length, stipulate for the entry of a judgment of dismissal under section (a)(1), and they do not claim mistake, inadvertence, surprise, or excusable neglect, nor are any of the parties to the action seeking to have the order set aside, that judgment is final. Columbia Sav. & Loan Ass'n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974). "Meeting of minds" necessary before stipulation of dismissal. Where parties do not have a "meeting of the minds" as to the terms of a proposed compromise and settlement, there is no settlement which would serve as a basis for a stipulation of dismissal under section (a)(1)(B). H.W. Houston Constr. Co. v. District Court, 632 P.2d 563 (Colo. 1981). Where no comment made as to whether first dismissal was with or without prejudice that dismissal was without prejudice. Where no comment by counsel or the court was made as to whether the dismissal prior to the trial of the first action was with or without prejudice, by the clear language of section (a)(1) of this rule, that dismissal was without prejudice. Vigil v. Lewis Maint. Serv., Inc., 38 Colo. App. 209, 554 P.2d 703 (1976); FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260 (Colo. App. 2004). Water court did not abuse its discretion by not awarding attorney fees because it was reasonable to continue to assert the claim until the eve of trial. Application of Hines Highlands P'ship, 929 P.2d 718 (Colo. 1996). B. By Court. A plaintiff is not entitled to dismiss his action as a matter of right after the trial has begun, but only as a matter of favor. Reagan v. Dyrenforth, 87 Colo. 126, 285 P. 775 (1931); Scofield v. Scofield, 89 Colo. 409, 3 P.2d 794 (1931). If he wishes to escape the effect of the "two dismissal rule", he is required to obtain a dismissal by the court under section (a)(2) of this rule upon such terms and conditions as the court deems proper. Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S. Ct. 715, 21 L. Ed. 2d 706 (1969). Dismissal discretionary. Although section (a)(2) gives the court discretion to grant or deny a motion to dismiss, a plaintiff's motion to dismiss voluntarily without prejudice generally should be granted, unless granting the motion will cause some legal prejudice to the defendant. Tillery v. District Court, 692 P.2d 1079 (Colo. 1984); Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Trial court has discretionary authority to convert a voluntary proceeding to dismiss without prejudice to an involuntary dismissal with prejudice under rule governing voluntary dismissal of actions by order of the court. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Fact that plaintiff may later bring the same suit against defendant in another court in and of itself is not sufficient prejudice to defendant to warrant denying motion to dismiss; however, if a dismissal would unfairly prejudice defendant, then it should be denied. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Before granting a plaintiff's motion for voluntary dismissal without prejudice, the trial court must determine that any harm to the defendant may be avoided by imposing terms and conditions of dismissal. FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260 (Colo. App. 2004). In determining whether a dismissal without prejudice would cause harm to a defendant, the trial court should consider: Duplicative expense of separate litigation; extent to which current suit has progressed, including effort and expenses incurred by defendant; adequacy of plaintiff's explanation for need to dismiss; plaintiff's diligence in bringing motion to dismiss; and any undue vexatiousness on plaintiff's part. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). When a trial court grants a plaintiff's motion for voluntary dismissal without prejudice under section (a)(2) and does so over the defendant's objection, without imposing terms and conditions that the defendant requests, or without making allowances for the defendant's counterclaims, the court's order is sufficiently final to support the defendant's appeal. FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260 (Colo. App. 2004). Denial of plaintiff's motion to dismiss without prejudice not an abuse of discretion where: Case had languished for a year; plaintiff failed to verify his claim that he was financially unable to proceed; defendant incurred legal expenses of over $30,000; trial on the merits was imminent and would have been relatively simple and inexpensive; and the trial court was likely to rule in favor of defendant on the remaining legal issue. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). It is within discretion of district court to dismiss appeal from state administrative agency action if the appellant has not complied with the statutory time limitations for filing briefs. Warren Vill., Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980). Trial court has implicit authority to order dismissal with prejudice under rule governing voluntary dismissal of actions by order of the court. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Terms and conditions of dismissal may include award of costs and fees. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). Award of costs and fees may not include work that will be useful in continuing litigation, as the policy of the rule is to fashion a remedy for the defendant rather than to punish the plaintiff. The court's order must include competent evidence supporting the allocation of fees and costs. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo. 2000). Once an adverse party has answered or filed a motion for summary judgment, section (a) requires that a stipulation of dismissal must be signed by all parties who have appeared in the action or by their attorneys. Because the city of Westminster was not a party to the stipulation of dismissal, the dismissal was not done pursuant to section (a)(1), and, therefore, under section (a)(2), a court order of dismissal was necessary. The running of the 45-day period for filing an appeal does not begin until a court order of dismissal as to all parties is filed. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). If court places terms and conditions upon voluntary dismissal by order of the court which are unacceptable to plaintiff, plaintiff is entitled to proceed with litigation. Accordingly, plaintiff was entitled to elect to proceed to trial rather than to accept dismissal with prejudice as a term and condition of dismissal. Powers v. Prof'l Rodeo Cowboys, 832 P.2d 1099 (Colo. App. 1992). A court's decision on a section (b) motion will not be overruled on appeal unless it is shown that the findings and conclusions of the trial court were so manifestly against the weight of the evidence as to compel a contrary result. Smith v. Weindrop, 833 P.2d 856 (Colo. App. 1992). III. Involuntary Dismissal by Defendant. A. Failure to Prosecute. Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 36 Dicta 5 (1959). The plaintiff and not the defendant must prosecute the case in due course and without unusual delay under this rule. Johnson v. Westland Theatres, Inc., 117 Colo. 346, 187 P.2d 932 (1947). The burden rests upon the plaintiff to prosecute a case in due course without unusual delay. Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713 (1956); Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961). The burden is on the plaintiff to prosecute a case in due course and without unusual delays. BA Leasing Corp. v. Bd. of Assmt. Appeals, 653 P.2d 80 (Colo. App. 1982). It is not the defendant's duty to make any move whatever, except such as the law requires him to make in response to the steps of the plaintiff. Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967). It is unnecessary for the party moving to dismiss to show inconvenience or injury suffered by reason of the delay because the law presumes injury from unreasonable delay. BA Leasing Corp. v. Bd. of Assmt. Appeals, 653 P.2d 80 (Colo. App. 1982). A plaintiff who does not move forward with reasonable dispatch demanded by this rule can find no solace in the activity of his opponent unless it has somehow hindered his own ability to proceed. Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967). Defendant is estopped by his waiver. Where the record indicates that any laches on the part of plaintiffs was waived by defendant and his conduct in the matter, defendant is estopped to urge dismissal. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961). Where both parties fail in their duty to observe the steps to be taken to bring their claims to a speedy trial or termination, neither should be given an advantage over the other because of this fact, and dismissal of an action for failure to prosecute should be denied upon a proper showing. Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963). This rule which permits a court to dismiss a case for inactivity is not meant to be a rule of forfeiture, but rather a guide for the efficient and orderly administration of the courts. Mizar v. Jones, 157 Colo. 535, 403 P.2d 767 (1965). If a person starts the law in motion and does not with reasonable promptness pursue all the steps necessary to bring the litigation to an end, he should suffer the penalty of a default and a dismissal of the action. Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967). A trial court has the inherent power to dismiss a claim for failure to prosecute. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961); Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963); Schleining v. Estate of Sunday, 163 Colo. 424, 431 P.2d 464 (1967); Lake Meredith Reservoir Co. v. Amity Mut., 698 P.2d 1340 (Colo. 1985); Cullen v. Phillips, 30 P.3d 828 (Colo. App. 2001). Power to dismiss for failure to prosecute in sound discretion of trial court. The inherent power to dismiss an action for failure to prosecute rests in the sound discretion of a trial court. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961); Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963); Tell v. McElroy, 39 Colo. App. 431, 566 P.2d 374 (1977). The decision whether there has been a failure to prosecute which warrants dismissal lies within the sound discretion of the trial court. BA Leasing Corp. v. Bd. of Assmt. Appeals, 653 P.2d 80 (Colo. App. 1982); Lake Meredith Reservoir Co. v. Amity Mut., 698 P.2d 1340 (Colo. 1985); Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Discretion not without bounds. The discretion to dismiss an action for failure to prosecute is not without bounds and it must be borne in mind that courts "exist primarily to afford a forum to settle litigable matters between disputing parties". Farber v. Green Shoe Mfg. Co., 42 Colo. App. 255, 596 P.2d 398 (1979). Power to dismiss for failure to prosecute is not an unlimited power. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961); Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963); Tell v. McElroy, 39 Colo. App. 431, 566 P.2d 374 (1977). The power should not be exercised where the record shows that both parties nursed the case along with the court's approval, for in such circumstances, it is an abuse of discretion to order a dismissal. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961). An appellate court cannot say that, as a matter of law, a plaintiff either was or was not diligent, since this conclusion was for the trial court to make within the radius of its sound discretion. Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967). A trial court retains the discretion to dismiss an action with or without prejudice. Cornelius v. River Ridge Ranch Landowners Ass'n, 202 P.3d 564 (Colo. 2009). Dismissal with prejudice held proper. Where there is no explanation whatsoever for plaintiff's delay of over two years in prosecuting tort action, and there was a sufficient showing to satisfy the requirement of willful default, it was a proper case for dismissal with prejudice. Kappers v. Thomas, 32 Colo. App. 200, 511 P.2d 910 (1973). A water court does not abuse its discretion in dismissing a case with prejudice when an applicant for adjudication of water rights does not comply with the civil disclosure rules and fails to provide any information related to the applications other than that contained in the initial application. Given the large-scale nondisclosure, the water court's conclusion that the applicant's failure to comply with disclosure requirements constitutes a failure to prosecute was not an abuse of discretion. Cornelius v. River Ridge Ranch Landowners Ass'n, 202 P.3d 564 (Colo. 2009). Serious wilful default should be shown. Courts have the responsibility to do justice between disputing parties, and one's day in court should not be denied except upon a serious showing of wilful default. Mizar v. Jones, 157 Colo. 535, 403 P.2d 767 (1965); Levine v. Colo. Transp. Co., 163 Colo. 215, 429 P.2d 274 (1967). Where there are facts that serve as mitigating circumstances for delay, they should be considered by the court, and a motion for dismissal of an action for failure to prosecute denied upon a proper showing. Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963); Mizar v. Jones, 157 Colo. 535, 403 P.2d 767 (1965). Where the plaintiff put forth every effort to have her case prosecuted and finally obtained new counsel in order to speed the proceedings, it cannot be said that she was guilty of failing to prosecute. Johnson v. Westland Theatres, Inc., 117 Colo. 346, 187 P.2d 932 (1947). A statement on the day set for trial that plaintiff does not wish to proceed with the suit is sufficient to justify dismissal for want of prosecution. Merwin v. Ideal Cement Co., 128 Colo. 503, 263 P.2d 1021 (1953). Where the supreme court reversed a judgment and remanded the cause for further proceedings and plaintiff failed for eight years to take any steps to have the cause retried, a motion to dismiss for want of prosecution should have been sustained, no reasonable excuse for the delay being shown. Yampa Valley Coal Co. v. Velotta, 83 Colo. 235, 263 P. 717 (1928). A case disclosed a reasonable excuse for the delay where there were mitigating circumstances involved in the delay of the suit when: First, the parties were engaged in negotiation toward a settlement for three years for passage of time alone does not, under such circumstances, show that the action has not been prosecuted with reasonable diligence; second, plaintiffs were required to obtain new counsel after their former attorney had been elected county judge, for this occasioned permissible delay as counsel was required to familiarize himself with the facts and details of the case; and third, there was substantial evidence in the record indicating that defendant was equally responsible with plaintiffs for delaying trial of the action, since several of the later trial dates were vacated because defendant's counsel either requested postponement or failed to appear. Cervi v. Town of Greenwood Vill., 147 Colo. 190, 362 P.2d 1050 (1961). Where the first attorney became ill for months and was unable to work and the plaintiffs were unable to retain other attorneys until they acquired the necessary funds, these facts show a reasonable excuse for the delays in prosecuting an action, particularly when, by the time the motion to dismiss for lack of prosecution was heard, the plaintiffs were ready and anxious to proceed and were not trying to delay the cause. Mizar v. Jones, 157 Colo. 535, 403 P.2d 767 (1965). When dismissal for failure to prosecute unjustified. Where the motion to dismiss is made after the plaintiff has resumed his efforts to prosecute, has set the case for trial, and, indeed, is ready for trial on the very day the motion is heard, the policy underlying the dismissal rule to prevent unreasonable delays is less compelling than the policy favoring resolution of disputes on the merits, and the court errs in dismissing the action. Farber v. Green Shoe Mfg. Co., 42 Colo. App. 255, 596 P.2d 398 (1979). There is no abuse of discretion in dismissing for lack of prosecution where plaintiff had not prosecuted action for thirty-seven years. Lake Meredith Reservoir Co. v. Amity Mut., 698 P.2d 1340 (Colo. 1985). Where defendant in prior action sought and obtained dismissal for failure to prosecute but did not specifically request dismissal with prejudice, order of dismissal did not so specify, and no good cause was shown for defendant's failure to request dismissal with prejudice, subsequent "clarification" of order to specify dismissal with prejudice was ineffective. McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991). B. No Right to Relief. In ruling on a motion to dismiss for failure to prove a prima facie case, the proper test is whether plaintiff produced some evidence which, when taken most favorably to him, proved a claim upon which relief could be granted. Brown v. Central City Opera House Ass'n, 36 Colo. App. 334, 542 P.2d 86 (1975), aff'd, 191 Colo. 372, 553 P.2d 64 (1976). Trial court's decision regarding whether to grant a motion for dismissal should not be disturbed on appeal unless findings of trial court are clearly against the weight of the evidence. Smith v. Weindrop, 833 P.2d 856 (Colo. App. 1992); Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993). Under this rule a trial court is empowered to determine a case on its merits at the conclusion of plaintiff's evidence and to render a judgment upon findings based thereon. Edwards Post No. 252, Regular Veterans Ass'n v. Gould, 144 Colo. 334, 356 P.2d 908 (1960). Trial court may sit as the trier of facts. Under section (b)(1) of this rule, a trial court sitting as the trier of the facts may at the conclusion of plaintiff's presentation of evidence determine the facts and render judgment against the plaintiff. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966). The trial court is the finder of fact. When the trial is to the court, the trial court is the finder of fact and may make its findings and render judgment against the plaintiff at the close of the plaintiff's case. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965); Hoeprich v. Cummiskey, 158 Colo. 365, 407 P.2d 28 (1965); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Rubens v. Pember, 170 Colo. 182, 460 P.2d 803 (1969). Where there is an issue of fact to be resolved, a trial court errs in dismissing plaintiff's complaint under this rule. Reed v. United States Fid. & Guar. Co., 176 Colo. 568, 491 P.2d 1377 (1971). A complaint cannot be dismissed unless it appears that plaintiff is entitled to no relief under any state of facts which may be proved in support of the claim. Millard v. Smith, 30 Colo. App. 466, 495 P.2d 234 (1972). When a trial judge, after considering all of the evidence, is convinced that there is no basis upon which a verdict in favor of the plaintiff could be supported, it is his duty as a matter of law to sustain a motion for dismissal. McSpadden v. Minick, 159 Colo. 556, 413 P.2d 463 (1966). The correct test for determining the issues raised by a motion to dismiss in a trial without jury is whether a judgment in favor of the defendant is justified on the plaintiff's evidence and not whether plaintiff has presented a "prima facie" case. Am. Nat'l Bank v. First Nat'l Bank, 28 Colo. App. 486, 476 P.2d 304 (1970); Smith v. Weindrop, 833 P.2d 856 (Colo. App. 1992). Where defendant's motion to reopen the divorce decree was not a motion pursuant to section (b) of this rule, no findings of fact and conclusions of law were required to accompany the ruling on this motion. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977). The question on review of such action is not whether the plaintiff made a "prima facie" case, but whether a judgment in favor of the defendant was justified on the plaintiff's evidence. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965); Hoeprich v. Cummiskey, 158 Colo. 365, 407 P.2d 28 (1965); Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Rubens v. Pember, 170 Colo. 182, 460 P.2d 803 (1969); South Carolina Ins. Co. v. Fisher, 698 P.2d 1369 (Colo. App. 1984). This is not a situation where the evidence is to be viewed in the light most favorable to plaintiffs. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966). When reviewing a dismissal entered in jury trial, the evidence must be viewed in light most favorable to plaintiff. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Rubens v. Pember, 170 Colo. 182, 460 P.2d 803 (1969); First Nat'l Bank v. Groussman, 29 Colo. App. 215, 483 P.2d 398, aff'd, 176 Colo. 566, 491 P.2d 1382 (1971). Every favorable inference oftentimes is indulged. Comprehended in a ruling on a motion for dismissal is oftentimes the indulgence by the trial court of every favorable inference of fact which can legitimately be drawn from plaintiff's evidence. A. D. Jones & Co. v. Parsons, 136 Colo. 434, 319 P.2d 480 (1957). When passing upon a motion for a dismissal where the court is also the trier of fact, then, at the conclusion of plaintiffs' evidence, the trial judge may weigh the evidence, determine issues of credibility, and reach all permissible inferences, including those favoring defendants. First Nat'l Bank v. Groussman, 29 Colo. App. 215, 483 P.2d 398, aff'd, 176 Colo. 566, 491 P.2d 1382 (1971). In granting a motion to dismiss under this rule, the court necessarily finds on the factual questions that the plaintiff has shown no right to relief. Sedalia Land Co. v. Robinson Brick & Tile Co., 28 Colo. App. 550, 475 P.2d 351 (1970). In reviewing such findings, all conflicting evidence and possible inferences therefrom must be resolved by the appellate court in favor of the trial court's judgment. Sedalia Land Co. v. Robinson Brick & Tile Co., 28 Colo. App. 550, 475 P.2d 351 (1970). If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiff's case, then an appellate court cannot interfere with the findings and conclusions of the trial court. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284 (1965); Hoeprich v. Cummiskey, 158 Colo. 365, 407 P.2d 28 (1965); Kvols v. Lonsdale, 164 Colo. 125, 433 P.2d 330 (1967); Rubens v. Pember, 170 Colo. 182, 460 P.2d 803 (1969); R.A. Reither Const. Co. v. Wheatland Rural Elec. Ass'n, 680 P.2d 1342 (Colo. App. 1984); Colo. Coffee Bean v. Peaberry Coffee, 251 P.3d 9 (Colo. App. 2010). Where the question depends on a state of facts from which different minds could honestly draw different conclusions on that issue, then, under the (former) Code of Civil Procedure, the question must have been submitted to the jury for determination. Whitehead v. Valley View Consol. Gold Mining Co., 26 Colo. App. 114, 141 P. 138 (1914); City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000 (1927); Arps v. City & County of Denver, 82 Colo. 189, 257 P. 1094 (1927); Robinson v. Belmont-Buckingham Holding Co., 94 Colo. 534, 31 P.2d 918 (1934); Lesser v. Porter, 94 Colo. 348, 30 P.2d 318 (1934). Previously, such a motion admitted the truth of the evidence produced by plaintiff, in sense most unfavorable to defendant, and every inference legitimately deducible therefrom. Allen v. Florence & C. C. R. R., 15 Colo. App. 213, 61 P. 491 (1900); Whitehead v. Valley View Consol. Gold Mining Co., 26 Colo. App. 114, 141 P. 138 (1914); Mulford v. Nickerson, 76 Colo. 404, 232 P. 674 (1925). Ordinarily, a denial of a defendant's motion to dismiss entitles him to go forward with proof in support of his denials and the affirmative matter set up in his answer, as it is tantamount to a finding that a plaintiff has made out a "prima facie" case. A. D. Jones & Co. v. Parsons, 136 Colo. 434, 319 P.2d 480 (1957). Dismissal ends defendant's right to introduce evidence. In the absence of anything in the order for dismissal indicating otherwise, defendant's right thereafter to introduce additional evidence is lost. Carlile v. Zink, 130 Colo. 451, 276 P.2d 554 (1954). A motion for nonsuit is not proper under this rule, since the motion should be for dismissal. Toy v. Rogers, 114 Colo. 432, 165 P.2d 1017 (1946); Shearer v. Snyder, 115 Colo. 232, 171 P.2d 663 (1946); W. T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881 (1948). On appeal the court will treat a motion for nonsuit as one to dismiss under this rule. Shearer v. Snyder, 115 Colo. 232, 171 P.2d 663 (1946). C. Adjudication on Merits. An order of dismissal under this rule is an adjudication on the merits. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). Order is adjudication whether the dismissal is directed to counterclaims, cross-claims, or third-party claims. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). Jurisdictional or procedural grounds considered before substantive merits examined. Jurisdictional or procedural grounds for dismissal will be considered prior to examination of the substantive merits of a case. Summerhouse Condo. Ass'n v. Majestic Sav. & Loan Ass'n, 660 P.2d 16 (Colo. App. 1982). A mere dismissal without prejudice is no bar to another action for the same cause. Hallack v. Loft, 19 Colo. 74, 34 P. 568 (1893); Martin v. McCarthy, 3 Colo. App. 37, 32 P. 551 (1893); First Nat'l Bank v. Mulich, 83 Colo. 518, 266 P. 1110 (1928). A dismissal without prejudice does not operate as "res judicata". Wistrand v. Leach Realty Co., 147 Colo. 573, 364 P.2d 396 (1961). A dismissal based upon preliminary, subsidiary, technical, or jurisdictional grounds or lack of standing does not operate as "res judicata". Batterman v. Wells Fargo AG Credit Corp., 802 P.2d 1112 (Colo. App. 1990). Where the order of dismissal expressly specifies that it is without prejudice, the plaintiff has a right to have his claim adjudicated by amending his complaint or standing on the complaint and appealing. Wistrand v. Leach Realty Co., 147 Colo. 573, 364 P.2d 396 (1961). Amendment at close of evidence is error. At the close of the evidence, it is error to grant plaintiff, over defendant's objection, leave to amend the complaint to allege a new matter; instead of allowing the amendment, the trial court, under section (b)(1) of this rule, could dismiss plaintiff's complaint with a specification that such dismissal would not operate as an adjudication upon the merits. Barnes v. Wright, 123 Colo. 462, 231 P.2d 794 (1951). A judgment upon the merits is final and conclusive upon the parties, unless suspended or set aside by some proper proceeding. Hallack v. Loft, 19 Colo. 74, 34 P. 568 (1893). Dismissal "with prejudice" under C.R.C.P. 3(a) is a nullity. Section (b)(1) of this rule makes it clear that dismissals under C.R.C.P. 3(a), are without prejudice and do not operate as an adjudication on the merits; therefore the words "with prejudice" in an order of dismissal are a nullity and would in no way bar a subsequent action asserting the same claim for relief as set forth in the complaint. Morehart v. Nat'l Tea Co., 29 Colo. App. 465, 485 P.2d 907 (1971); Market Eng'g v. Monogram Software, 805 P.2d 1185 (Colo. App. 1991). Where a complaint is dismissed as to certain defendants and judgment of dismissal entered, a court has no power, after the time to file a motion for a new trial has expired as to such defendants, to grant a motion for a new trial as to all defendants, such dismissal constituting a judgment on the merits under this rule. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). Dismissal as to decedent under C.R.C.P. 25(a)(1) does not absolve remaining defendants who may be liable on a theory of respondeat superior. Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984). Where an action is dismissed because of the absence of proper parties, there is no decision on the merits. Summerhouse Condo. Ass'n v. Majestic Sav. & Loan Ass'n, 660 P.2d 16 (Colo. App. 1982). If a plaintiff wishes to contest such a dismissal as error, a timely motion for a new trial must be filed. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). Where a motion to dismiss is based upon failure of a plaintiff to establish a claim since he has released some joint tortfeasors, there is nothing in the record and the law to justify any conclusion other than that the action should proceed against the remaining joint tortfeasors where it is clear from a written agreement that they are not to be released as defendants. Farmers Elevator Co. v. Morgan, 172 Colo. 545, 474 P.2d 617 (1970). Failure to pay attorneys fees and costs pursuant to court order can result in dismissal only if it is established that such failure was willful or in bad faith, and not because of an inability to pay. Lewis v. J.C. Penney Co., Inc., 841 P.2d 385 (Colo. App. 1992). Applied in O'Done v. Shulman, 124 Colo. 445, 238 P.2d 1117 (1951); City & County of Denver v. Stanley Aviation Corp., 143 Colo. 182, 352 P.2d 291 (1960); Marcotte v. Olin Mathieson Chem. Corp., 162 Colo. 131, 425 P.2d 37 (1967). IV. Involuntary Dismissal by Court. This rule contemplates that notice precede an order of dismissal. Schleining v. Estate of Sunday, 163 Colo. 424, 431 P.2d 464 (1967); Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Courts of record have power to make and enforce rules for the transaction of their business, the only restriction upon such power being that the rules shall be reasonable and shall not contravene a statute. Cone v. Jackson, 12 Colo. App. 461, 55 P. 940 (1899); Hoy v. McConaghy, 14 Colo. App. 372, 60 P. 184 (1900). The rule of a trial court providing for the dismissal of causes for failure of prosecution is valid, and the court has power to enforce it. Carnahan v. Connolly, 17 Colo. App. 98, 68 P. 836 (1902). The rule can be enforced for failing to timely perform act required by law. A rule of court providing for the dismissal of cases for want of prosecution can only be enforced against a party for a failure to perform, within the prescribed time, some act required of him by law. Hoy v. McConaghy, 14 Colo. App. 372, 60 P. 184 (1900). Where the facts to which a court applied the rule in dismissing a case are not before an appellate court, it cannot be said that the trial court abused its discretion or violated the law in applying the rule. Carnahan v. Connolly, 17 Colo. App. 98, 68 P. 836 (1902). A judgment of dismissal entered without notice is void and is subject to direct or collateral attack. Thompson v. McCormick, 138 Colo. 434, 335 P.2d 265 (1959). Where a trial court's own rules give the court authority to set a case for trial without notice other than that explicit in the rule itself, then, although this rule governing dismissals requires actual notice to show cause why the case should not be dismissed before a court can entertain a show cause order, the trial court should adhere to its own published rules, a departure constituting an abuse of its discretion. Schleining v. Estate of Sunday, 163 Colo. 424, 431 P.2d 464 (1967). Where a local rule of a trial court provides that at the opening of a term all matters ready for trial will be set therefor, but the evidence discloses that a plaintiff was diligent in his desire to have his action tried and concluded and there appears no explanation why the case, being at issue, was not originally set for trial by the trial court pursuant to its rule, then dismissal of the action for failure to prosecute is an abuse of discretion. Rudd v. Rogerson, 152 Colo. 370, 381 P.2d 995 (1963). Dismissal of action improper where court allowed an additional time period within which the plaintiffs were to effect service and amend the complaint and plaintiffs met the time deadline imposed by the court. Nelson v. Blacker, 701 P.2d 135 (Colo. App. 1985). In addition, it was an abuse of discretion for court to impose a sanction for both parties' failure to file trial data certificates which was detrimental only to plaintiff, and benefitted the equally noncomplying defendants. Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). It is error to dismiss where plaintiffs are seeking to proceed. Where no party has sought a dismissal, plaintiffs are seeking to proceed, no hearing is had on the question of justifiable cause for dismissal and no findings of wilful default are made by the court, it is error for a trial court to dismiss the action. Levine v. Colo. Transp. Co., 163 Colo. 215, 429 P.2d 274 (1967); Maxwell v. W.K.A. Inc., 728 P.2d 321 (Colo. App. 1986). Mere "activity" in a case under a local court rule is not sufficient to protect against motions to dismiss for failure to prosecute, where the rule refers to "progress" and not simply "activity". "Progress" is a particular type of activity, to move forward, and clearly what is envisaged by such a rule is progress in prosecuting to a conclusion some claim for relief. Rathbun v. Sparks, 162 Colo. 110, 425 P.2d 296 (1967). A district court dismissal with prejudice in one county is "res judicata" to the same proceeding in another county and will support dismissal without prejudice in the second county; to hold otherwise would constitute a collateral attack on the first judgment. Smith v. Bott, 169 Colo. 133, 454 P.2d 82 (1969). Court's sua sponte order of dismissal for failure to prosecute cannot stand if it is not preceded by the notice required by this section and C.R.C.P. 121 § 1-10. In re Custody of Nugent, 955 P.2d 584 (Colo. App. 1997); Koh v. Kumar, 207 P.3d 900 (Colo. App. 2009). A delay reduction order does not suffice to provide reasonable notice of dismissal for purposes of section (b)(2). Koh v. Kumar, 207 P.3d 900 (Colo. App. 2009). Claims asserted barred by doctrine of res judicata. Where plaintiff originally brought claims in federal court and asked federal court to assert its discretionary pendent jurisdiction over claims, failed to request federal court to assert diversity jurisdiction, and failed to respond to federal court's order to show cause why it should assert its pendent jurisdiction and federal court dismissed claims based on default of plaintiff, plaintiff's claims are barred in state court by res judicata because plaintiff failed to show that the federal court would have refused to exercise its pendent jurisdiction. Whalen v. United Air Lines, Inc., 851 P.2d 251 (Colo. App. 1993). The substance of the doctrine of "res judicata", that any right, fact, or legal matter which is put in issue and directly adjudicated or necessarily determined by a court of competent jurisdiction is conclusively settled by such judgment and cannot afterwards be litigated or raised again by the same parties applies in criminal proceedings with the same conclusive effect as in civil proceedings. Trujillo v. People, 178 Colo. 136, 496 P.2d 1026 (1972). Applied in Hatcher v. Hatcher, 169 Colo. 174, 454 P.2d 812 (1969); Streu v. City of Colo. Springs ex rel. Colo. Springs Utils., 239 P.3d 1264 (Colo. 2010). V. Dismissal of Counterclaim, Cross Claim, or Third-Party Claim. This rule is applicable where multiple claims may be involved. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). This rule is controlling where a complaint is dismissed as to less than all defendants. There is apparent conflict in the directions contained in sections (b)(1) and (2) and (c) of this rule concerning dismissals and C.R.C.P. 54(a) and (b) relating to judgments on multiple claims. The latter rule requires an express determination that a claim has been adjudicated, while section (b)(1) of this rule provides that in the absence of a specific direction, an order of dismissal operates as an adjudication. However, this rule is controlling where a complaint is dismissed as to less than all of the defendants in a case. Graham v. District Court, 137 Colo. 233, 323 P.2d 635 (1958). This rule gives plaintiff right to dismiss only plaintiff's own claims and not separate and independent claims brought by another party. Accordingly, plaintiff's voluntary dismissal did not preclude a court from ruling on defendant's motion for a special shareholder meeting when the motion, despite not being pled as a separate complaint or counterclaim, was best characterized as a separate cause of action independent of plaintiff's action. Alpha Spacecom, Inc. v. Hu, 179 P.3d 62 (Colo. App. 2007).
For dismissal of class actions, see C.R.C.P. 23(e); for dismissal of receivership action, see C.R.C.P. 66(c); for findings by the court, see C.R.C.P. 52; for commencement of action, see C.R.C.P. 3; for joinder of persons needed for just adjudication, see C.R.C.P. 19.