Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Ste. Genevieve County Cause No.
15SG-CC00182. Honorable Wendy Wexler Horn
Colleen Dolan, Judge
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.
Standard of Review
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.
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.
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 of the Missouri Revised Statutes and
Missouri Supreme Court Rules 67.01, 67.02, and
67.03. 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.
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. 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.
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.
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
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