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Wheeler v. Eftink

Court of Appeals of Missouri, Eastern District, Second Division

November 8, 2016

Clinton Wheeler, Appellant,
v.
Edward Eftink, Respondent.

         Appeal from the Circuit Court of Ste. Genevieve County Cause No. 15SG-CC00182. Honorable Wendy Wexler Horn

          OPINION

          Colleen Dolan, Judge

         Clinton Wheeler ("Plaintiff") appeals the trial court's dismissal of his claim based on his failure to diligently prosecute Edward Eftink ("Defendant"). The parties are familiar with the facts and we will not recite them here. Nonetheless, we will discuss the facts as they relate to the issues on appeal. Plaintiff failed to demonstrate the trial court abused its discretion by dismissing his claim. Accordingly, we affirm.

         I. Standard of Review

         While exercising sound judicial discretion, trial courts have an inherent power to dismiss a case for failure to prosecute with due diligence. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976). We acknowledge the trial court is in a superior position to determine who caused the delay and if such delay was prejudicial to the defendant. State ex rel. Missouri Highway & Transp. Comm'n v. Moulder, 726 S.W.2d 812, 813 (Mo. App. S.D. 1987) (explaining that the trial court has "intimate knowledge of all aspects of the case[.]"). Accordingly, we give great deference to the trial court, and its dismissal will not be disturbed unless we find an abuse of discretion. Shirrell, 535 S.W.2d at 448. We presume the trial court's ruling is correct, and the appellant bears the burden of showing the court abused its discretion. Id. at 449.

         A trial court only abuses its discretion when its "ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014). We will uphold the ruling if it was proper on any grounds, even if such grounds were not the basis for the trial court's ruling. Id.

         II. Discussion

         In Plaintiff's sole point on appeal, he argues that the trial court "erred" in dismissing his claim because it was "timely filed" and complied with the requirements set forth in §§ 516.100, 516.120, and 516.230[1] of the Missouri Revised Statutes and Missouri Supreme Court Rules 67.01, 67.02, and 67.03.[2] Plaintiff must show that the trial court's dismissal of Cause 15SG-CG00182, with prejudice, was "arbitrary, " "unreasonable, " and clearly against the logic of the circumstances before the court." Peet v. Randolph, 103 S.W.3d 872, 876-877 (Mo. App. E.D. 2003). However, Plaintiff never acknowledges the appropriate standard of review. Furthermore, he does not argue that the trial court abused its discretion or rendered an "unreasonable" or "arbitrary" judgment. He merely asserts the trial court "erred, " and he fails to demonstrate the court abused its discretion in dismissing his claim. Accordingly, we affirm the trial court.

         Missouri law requires a plaintiff to promptly secure service against a defendant and advance his cause of action with due diligence. Stephens v. Dunn, 453 S.W.3d 241, 254 (Mo. App. S.D. 2014) (citing Atkinson v. Be-Mac Transport, Inc. 595 S.W.2d 26, 28 (Mo. App. E.D. 1980)). Here, Plaintiff must show that the trial court abused its discretion in dismissing his cause, with prejudice, based on Plaintiff's failure to diligently prosecute his claim against Defendant for an automobile accident that occurred on March 3, 2006.[3] Peet, 103 S.W.3d at 876. A fair test of whether a trial court abused its discretion in dismissing a case for failure to prosecute with due diligence is whether the plaintiff had a reasonable opportunity to resolve the matter at trial. Branson Hills Associates, L.P. v. First Am. Title Ins. Co., 258 S.W.3d 568, 573 (Mo. App. S.D. 2008). Mere delay in prosecution is insufficient to justify dismissal. West Central Concrete, LLC v. Reeves, 310 S.W.3d 778, 783 (Mo. App. W.D. 2010). There must be some evidence that the delay was unnecessary to justify a trial court's dismissal for failure to prosecute. Townsend v. Union Pacific R. Co., 968 S.W.2d 767, 770 (Mo. App. E.D. 1998).

         A. Reasonable Opportunity

         In this case, Plaintiff had ample opportunity to bring the matter to trial. Plaintiff's claim is based on an underlying automobile accident that Plaintiff alleges Defendant negligently caused. The relevant automobile accident occurred on March 3, 2006. Plaintiff and his wife both filed a suit as plaintiffs against Defendant in October of 2006. A trial was scheduled to commence in May of 2008. All three parties were deposed. Additionally, Defendant's treating physician was deposed to testify on Defendant's behalf, as well as other witnesses. Before trial began Defendant made a motion for summary judgment, and the court held a hearing for the parties' arguments on May 6, 2008. On that date, Defendant and Plaintiff's wife settled her claim, and Plaintiff voluntarily dismissed his claim.

         For nearly three years after his voluntary dismissal, Plaintiff made no effort to proceed with his claim. On March 2, 2011, Plaintiff re-filed the case pro se. A summons for Defendant was issued, but it was returned non est on March 23, 2011, because Defendant had moved. However, Defendant's new address was included on the returned summons. The case remained dormant for more than three years until August of 2014, when the court sent a notice to Plaintiff explaining that the case was going to be put on the dismissal docket due to its inactivity. The court held a dismissal conference hearing on October 7, 2014. Plaintiff failed to attend the conference, and the trial court dismissed the case without prejudice. Approximately ten months after the dismissal, Plaintiff re-filed his claim, which is the subject of this appeal, a third time on September 16, 2015. Plaintiff's petition was substantially similar to his first two, however, he alleged an additional, new injury caused by Defendant ("seizure episodes"). This suit was filed more than nine and a half years after the automobile accident and approximately nine years after Plaintiff's original suit. Based on the foregoing, the record shows Plaintiff had "reasonable opportunity to bring the matter to trial."

         B. Unjustified Delay

         Additionally, Plaintiff failed to demonstrate that his delay in prosecution was justified. During the motion to dismiss hearing, Plaintiff contended that one of the reasons for the delay in the case was Plaintiff's inability to locate and serve Defendant notice of the pro se suit filed on March 2, 2011. Plaintiff claimed he could not find Defendant and "[t]he only thing [he] found out about [Defendant was], he moved somewhere into…the State of Oklahoma." However, the returned summons clearly listed Defendant's new address. Thus, Plaintiff could have discovered where Defendant had moved and properly served him with any ...


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