However, case is set for trial with no further continuances and with the warning that it will be dismissed with prejudice if the parties are not ready for trial on the date set. Dismissal for lack of prosecution is with prejudice and res judicata as to issues raised in the case. Dismissal for lack of prosecution inappropriate and unnecessary where two and a half year delay has in part been due to the parties waiting for a decision in another case and where the remainder of the delay was caused by belief that the parties had a settlement agreement which was to be reduced to writing. More appropriate remedy is to schedule case for trial with no further continuances. Dismissal for lack of prosecution inappropriate and unnecessary where two and a half year delay has in part been due to the parties waiting for a decision in another case and where the remainder of the delay was caused by belief that the parties had a settlement agreement which was to be reduced to writing.
More appropriate remedy is to schedule case for trial with no further continuances.
This case has been pending since July 1, 1998. Petitioner, Synthetic Technologies Corporation, filed a response indicating that it does not object to dismiss without prejudice, however, the UEF wants dismissal with prejudice. The same issue was presented in a case prosecuted by the UEF for a penalty against Synthetic Technologies. A hearing officer of the Department of Labor and Industry held that Van Smith owned the companies and that three purported shareholders were in fact employees, not shareholders. While the appeal of the UEF penalty was pending, the parties in this case agreed to continue these proceedings pending resolution of the penalty case.