Kralik v. Mortgage Syndicate, Inc., 46680

• Decision Date: 09 May 1984
• Docket Number: No. 46680,46680
• Citation: 673 S.W.2d 448
• Parties: Milan Michael KRALIK, Appellant, v. MORTGAGE SYNDICATE, INC., and Peter C. Hixson, Respondents.
• Court: Missouri Court of Appeals

Page 448

673 S.W.2d 448

Milan Michael KRALIK, Appellant, v. MORTGAGE SYNDICATE, INC., and Peter C. Hixson, Respondents.

No. 46680.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 9, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 12, 1984.

Edward P. Burke, Clayton, for appellant.

Stanley H. Chorlins, Clayton, for respondents.

REINHARD, Judge.

Plaintiff appeals the dismissal of his petition to set aside a foreclosure sale. The court dismissed the action for failure to prosecute. We affirm.

Plaintiff owned property in Crestwood, Missouri, which he used as his residence. This property was secured by two deeds of trust, the second of which was foreclosed by defendant Mortgage Syndicate, Inc. for nonpayment and sold at a foreclosure sale April 15, 1980. On May 13, 1980, plaintiff filed a petition to set aside the foreclosure sale and for damages for wrongful foreclosure.

Defendant's attorney entered his appearance in this matter June 9, 1980 and filed a motion to make more definite and certain and a motion to dismiss on behalf of defendant Hixson. These matters were never ruled upon.

Defendants then filed a motion for summary judgment on October 21, 1980, which plaintiff responded to and which was overruled in February, 1981. The action was subsequently set for trial September 3, 1981 but was continued at the parties' consent.

Thereafter, the plaintiff took no action to ready this case for trial. The only activity of any sort during this period was that by plaintiff's counsel, who twice sought to withdraw from the case, the second of which was accepted by the court on November 3, 1981.

Finally, on December 10, 1982, after passage of fifteen months with no activity on plaintiff's part to prosecute the case, defendants filed their motion to dismiss for failure to prosecute. ¹ On December 10, 1982, plaintiff appeared with different counsel and, after hearing argument, the court sustained the motion to dismiss plaintiff's suit.

Rule 67.02 authorizes a defendant to move for dismissal of a 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. Shirrell v. Missouri Edison Company, 535 S.W.2d 446, 448 (Mo. banc 1976). The decision as to whether the action has been diligently prosecuted must be made on a case by case basis. Vonder Haar Concrete Company v. Edwards-Parker, Inc., 561 S.W.2d 134, 138 (Mo.App.1978). The trial court's decision on this matter will not be disturbed on appeal absent an abuse of discretion. Shirrell v. Missouri Edison Company, 535 S.W.2d at 448. Such an abuse is present when the decision is clearly contrary to the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id.

The present case sat dormant for fifteen months immediately prior to the court's determination that plaintiff had not diligently pursued his claim. Plaintiff maintains that he indicated his readiness for trial when he appeared at the hearing on the motion to dismiss for failure to prosecute, see Vonder Haar Concrete Company v. Edwards-Parker, Inc., 561 S.W.2d at 139, and that prior...