Knight v. Kitchen, WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKENNEDY
Citation733 S.W.2d 864
PartiesLillie KNIGHT, Appellant, v. Douglas O. KITCHEN, et al., Respondents. 38754.
Docket NumberNo. WD,WD
Decision Date28 July 1987

Page 864

733 S.W.2d 864
Lillie KNIGHT, Appellant,
Douglas O. KITCHEN, et al., Respondents.
No. WD 38754.
Missouri Court of Appeals,
Western District.
July 28, 1987.

Page 865

William J. Hill, Kansas City, for appellant.

Arthur H. Stoup, Shirley J. Swofford, Kansas City, for respondents.



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...

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3 cases
  • Waldorf Inv. Co. v. Farris, 20273
    • United States
    • Court of Appeal of Missouri (US)
    • February 14, 1996
    ...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......
  • O.S.G. by L.G. v. G.B., Jr., 17146
    • United States
    • Court of Appeal of Missouri (US)
    • March 15, 1991
    ...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......
  • Allen v. State, 52437
    • United States
    • Court of Appeal of Missouri (US)
    • July 28, 1987
    ...733 S.W.2d 864 Isaac Edward ALLEN, STATE of Missouri, Plaintiff-Respondent. No. 52437. Missouri Court of Appeals, Eastern District, Division Three. July 28, 1987. Appeal from Cape Girardeau Circuit Court, Cape Girardeau County; A.J. Seier, Judge. Nancy A. McKerrow, Columbia, for defendant-a......

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