¶1 dissenting.
¶2 As I cannot concur in the judgment of the majority, I must dissent.
¶3 Sometime shortly after August 23, 1988, the parties received notice that the last appeal in this matter was dismissed for lack of a final appealable order. The next indication in the court file that anything was done (other than the substitution of counsel on February 7, 1989) was the filing on August 20, 1992 of a notice of status conference. This was three days shy of four years later. This case languished through forty-seven monthly reports and two physical “hands on” audits. It is obvious that, for whatever the reason, the trial court was unaware that it was pending and by virtue of that was unable to schedule it for trial.
¶4 The trial court, once the motion to dismiss was filed, gave plaintiff adequate opportunity to show cause why the matter should not be dismissed. After determining that there was no good cause and, in light of the reality that the case had been pending for in excess of eight years, the trial court made a determination, in its discretion, that it would be appropriate to dismiss with prejudice for failure to prosecute.
¶5 The issue before us is not whether this is a decision that most judges would make or that we individually as judges would make. The issue is whether the decision to dismiss was arbitrary, capricious and unreasonable and constituted an abuse of discretion. I think not.
¶6 While I cannot disagree with the majority that, as a trial judge; a dismissal without prejudice would have been appropriate, I am required to defer to the trial court and, absent a finding of abuse of discretion, affirm that decision.