Horobec v. Mueller

• Decision Date: 09 February 1982
• Docket Number: No. 44029,44029
• Parties: William R. HOROBEC, Plaintiff-Appellant, v. Earl E. MUELLER and June M. Mueller, his wife, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 942

628 S.W.2d 942

William R. HOROBEC, Plaintiff-Appellant, v. Earl E. MUELLER and June M. Mueller, his wife, Defendants-Respondents.

No. 44029.

Missouri Court of Appeals, Eastern District, Division Three.

Feb. 9, 1982.

W. Morris Taylor, Taylor, Schumaier & Sluggett, Clayton, for plaintiff-appellant.

Thomas M. Lang & Daniel P. Card, II, Love, Lacks, McMahon & Schwarz, Clayton, for defendants-respondents.

SNYDER, Judge.

The plaintiff-appellant in a contract and fraud action in St. Charles County appeals from the trial court's dismissal of the action with prejudice and the trial court's refusal to reinstate the case upon appellant's motion. The trial court dismissed the case for failure to prosecute. The judgment is reversed and the cause remanded.

The trial court dismissed appellant's action at approximately 9:25 a. m. on February 9, 1981 after appellant and appellant's counsel failed to appear for a 9:00 a. m. docket call. The case was third on the docket. It was the first trial setting.

Appellant's counsel appeared at approximately 10:15 a. m. the same day and moved the court to set aside its dismissal and reinstate the action. The motion was based upon counsel's sworn statement that appellant and appellant's witnesses were on call to be at the courthouse within ten minutes; that counsel had communicated with counsel for the second case on the docket who had told appellant's counsel the second case would be tried and that appellant's counsel would be notified if not; that appellant's counsel had appeared at a peremptory setting in St. Louis County and had passed the matter to February 10, 1981; and that appellant's counsel had previously informed respondents' counsel that appellant would go to trial when their case was reached unless in trial in some other matter.

Appellant's motion was heard on February 13, 1981. A transcribed record was made of only a portion of the hearing. The trial court expressed its concern that appellant's counsel had not contacted the court to explain counsel's delay in appearing. Appellant's counsel stated he had contacted the clerk's office the week prior to the week of the trial setting. The judge expressed his view that such was not sufficient and that appellant's counsel should have contacted the court or the court clerk rather than the circuit clerk's office. The court then denied appellant's motion.

Both appellant and respondents have filed motions to supplement the record on appeal which were taken with the case. Both motions are denied because the documents with which the parties seek to supplement the record were never presented to the trial court. Carondelet Savings & Loan Association v. Boyer, 595 S.W.2d 744, 746(3-5) (Mo.App.1980).

In his first point relied on, appellant contends the trial court's dismissal of his action was an abuse of discretion because it was against the logic of the circumstances. Appellant argues counsel was ready to proceed to trial and had exhibited no lack of due diligence or undue delay in bringing the action to trial. Appellant's contention has merit and requires reversal.

Courts have the inherent power, in the exercise of sound judicial discretion, to dismiss an action for failure to prosecute with due diligence. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448(1-2) (Mo. banc 1976). The trial court's decision will not be disturbed on appeal unless the trial court's discretion was abused. Shirrell v. Missouri Edison Co., supra. The appellate court will presume the trial court's decision is correct, and the appellant has the burden to show an abuse of the trial court's discretion. Shirrell v. Missouri Edison Co., supra.

Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Shirrell v. Missouri Edison Co., supra.

If reasonable men can differ about the propriety of the action taken by the trial court, the trial court has not abused its discretion. Shirrell v. Missouri Edison Co., supra. Nevertheless, the court's discretion is to be exercised in such manner as to serve the ends of justice, Laurie v. Ezard, 595 S.W.2d 336, 337(1, 2) (Mo.App.1980), and the law favors disposition of a case upon the merits when possible. Bonney v. Farmer, 613 S.W.2d 463, 464(1, 2) (Mo.App.1981); Laurie v. Ezard, supra at 337(1, 2).

Although the decision whether a case should be dismissed for want of prosecution should be determined upon the particular facts and circumstances of the action on a case-by-case basis, Bonney v. Farmer, supra, Laurie v. Ezard, supra at 338(5), prior appellate decisions do provide some guidance. Neither the parties nor research had disclosed a case in which the plaintiff's case was dismissed with prejudice for failure to diligently prosecute, when the plaintiff stood ready to try the case and was not chargeable with any past lack of diligence, solely upon the basis that plaintiff's counsel was tardy in appearing in court because of a conflicting court setting.

Most cases in which the action had been dismissed involved a substantial period in which the plaintiff took no action to bring the matter to trial. Shirrell v. Missouri Edison Co., supra at 449-450; Bonney v. Farmer, supra at 464; State ex rel. Hayden v. Carr, 597 S.W.2d 710 (Mo.App.1980); Levee District No. 4 of Dunklin County v. Small, 281 S.W.2d 614 (Mo.App.1955).

In some cases, the forbearance of the court which dismissed the action in permitting the plaintiff to attempt to plead properly, in permitting the plaintiff ample opportunity to attempt to justify the failure to prosecute, or in making the dismissal without prejudice, was noted by the appellate court. Shirrell v. Missouri Edison Co., supra at 449-450(3); Green v. Green, 606 S.W.2d 395, 399 (Mo.App.1980).

In one case, the appellate court held the trial court abused its discretion in dismissing the case, despite a prior period of inactivity, because the case was being actively pursued at the time of dismissal. Laurie v. Ezard, supra at 337-338(3-4, 6-8).

In the case under review suit was filed on April 23, 1979 and appellant's counsel was diligent in completing discovery and obtaining a trial setting as soon as the case was at issue. In fact, for a period of several months respondents failed to file an answer to appellant's petition.

The only...