Knight v. Kitchen, WD
| Decision Date | 28 July 1987 |
| Docket Number | No. WD,WD |
| Citation | 733 S.W.2d 864 |
| Parties | Lillie KNIGHT, Appellant, v. Douglas O. KITCHEN, et al., Respondents. 38754. |
| Court | Missouri Court of Appeals |
William J. Hill, Kansas City, for appellant.
Arthur H. Stoup, Shirley J. Swofford, Kansas City, for respondents.
Before BERREY, P.J., and KENNEDY and LOWENSTEIN, JJ.
Plaintiff filed a third-party petition for damages charging defendants Douglas O., Oliver A. and Shirley Kitchen with tortious interference with her contractual attorney-client relationship with one Rebecca DeMarea and with tortious interference in the negotiation and settlement of a will contest action in which plaintiff was representing DeMarea as contestant. Upon defendants' motion, the court dismissed the petition with prejudice. The motion asserted two grounds for dismissal--first, that the plaintiff was barred by the doctrine of collateral estoppel, and second, that plaintiff had failed to prosecute the action with due diligence. The court's order sustained the motion and dismissed the plaintiff's petition with prejudice, without specifying upon which of the grounds the order was based. It is this order of dismissal from which plaintiff prosecutes her appeal.
We affirm the judgment.
The present lawsuit had its genesis in a will contest in which plaintiff represented Rebecca DeMarea in the contest of DeMarea's deceased father's will. The will contest resulted in a verdict and judgment upholding the will. DeMarea appealed the adverse judgment and, while the appeal was pending, agreed with the proponents of the will upon a compromise settlement. The settlement resulted in the payment to DeMarea of the sum of $105,000. At this point, however, plaintiff and DeMarea got into a dispute over the amount of plaintiff's fee and litigation expenses advanced by plaintiff.
The $105,000 proceeds of the settlement were escrowed, and the escrow holder interpleaded plaintiff and DeMarea. That dispute was finally settled by the decision of this court in Knight v. DeMarea, 670 S.W.2d 59 (Mo.App.1984). The appeal ran its course on June 19, 1984, with the denial by the Supreme Court of plaintiff's motion to transfer, and our mandate was issued under date of June 20, 1984.
In the same interpleader action in which plaintiff's claim against DeMarea for attorney's fees was carried on, plaintiff also filed the third-party petition against the Kitchens claiming tortious interference by them with the attorney-client employment contract and the settlement negotiations. Upon the motion of defendant DeMarea, however, plaintiff's claim against her was ordered to be tried separately from plaintiff's claims against the Kitchens. The separate trial order was made September 2, 1981. After that date there was never any activity on the petition against the Kitchens. It lay dormant until it was dismissed by Judge Coburn on August 22, 1986.
The Kitchens' motion to dismiss was filed on July 14, 1986, with notice to plaintiff's counsel. No suggestions in opposition thereto were filed, nor was any request made for oral argument, provisions for which are made in the local court rules.
In these circumstances, we cannot hold that the trial court abused its discretion in dismissing the case for want of prosecution. Rule 67.02 authorizes a defendant to move for dismissal of the civil action against him on account of failure on the part of plaintiff to prosecute the action. It is well settled that the courts have inherent authority, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence. The decision as to whether the action has been diligently prosecuted must be made on a case-by-case basis. The trial court's decision on this matter will not be disturbed on appeal absent an abuse of discretion. Such an abuse is present when the...
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Waldorf Inv. Co. v. Farris
...feature making it unreasonably harsh for the trial court to have dismissed the suit for lack of prosecution. See Knight v. Kitchen, 733 S.W.2d 864, 865-66 (Mo.App.W.D.1987). The dismissal here was not clearly against the logic of the circumstances before the court, at least to the extent in......
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O.S.G. by L.G. v. G.B., Jr.
...727, 728 (Mo.App.1978). Whether an action has been diligently prosecuted must be decided on a case-by-case basis. Knight v. Kitchen, 733 S.W.2d 864, 865 (Mo.App.1987); Kralik v. Mortgage Syndicate, Inc., 673 S.W.2d 448, 449 Attendant circumstances in the instant case include defendant's fai......
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