Laubinger v. Missouri State Highway Com'n, WD
| Decision Date | 13 January 1987 |
| Docket Number | No. WD,WD |
| Citation | 726 S.W.2d 355 |
| Parties | Jess LAUBINGER, Appellant, v. MISSOURI STATE HIGHWAY COMMISSION, Respondent. 38119. |
| Court | Missouri Court of Appeals |
Deborah L. Hellmann, of Sullivan & Watkins, Inc., Clayton, for appellant.
Bruce A. Ring, Chief Counsel, Paula Lambrecht, Tana K. VanHamme, Asst. Counsels, of Missouri Highway and Transp. Com'n, Jefferson City, for respondent.
Before PRITCHARD, P.J., and MANFORD and BERREY, JJ.
Plaintiff Laubinger appeals from an order of the Cole County Circuit Court dismissing his breach of contract action against the Missouri State Highway Commission. A previous action on these same facts was dismissed by the circuit court in 1981 for failure to prosecute, and the court dismissed the present suit as res judicata. On appeal, plaintiff argues that the circuit court erred by granting the motion to dismiss because the first dismissal was not with prejudice, and because plaintiff did not have reasonable notice and opportunity to be heard prior to the first dismissal. Judgment affirmed.
Plaintiff originally filed this breach of contract action on January 31, 1975, alleging, inter alia, that plaintiff contracted with the Highway Commission to furnish construction materials, that plaintiff was prevented by causes beyond his control from completing the contract as scheduled, and that the Highway Commission assessed liquidated damages against plaintiff. Plaintiff's attorney withdrew from the case in 1979.
On March 24, 1981, the Cole County Circuit Court sent a letter over the signature of Judge Byron L. Kinder advising plaintiff that there had not been any activity in the case for at least twelve months and that the case would be dismissed for want of prosecution if no further action was taken by April 20, 1981. The letter was prepared by the circuit clerk's office as part of a routine docket-clearing procedure. The letter was addressed to the most current address of plaintiff in the court file, stamped, and mailed, with a return address, through the regular mail service. The clerk of the Cole County Circuit Court testified, at the hearing on the motion to dismiss, that she supervised the mailing of approximately 350 such letters in 1981. If one of these letters was returned by the post office, it was file-stamped and filed in the court file for the case. Plaintiff testified that he did not receive the letter advising him that his case would be dismissed. The Cole County Clerk testified that the court file in plaintiff's case did not contain a returned letter.
Plaintiff's first action was dismissed by docket entry "for want of prosecution" on May 15, 1981. A motion to reinstate the case was denied. The present action was filed on February 23, 1982. Although the parties participated in discovery, Judge James F. McHenry scheduled a hearing on respondent's motion to dismiss and on January 16, 1986, entered an order dismissing the case because it was "barred by the statute of limitations and res judicata."
Plaintiff's first point is that the trial court erred by dismissing this case because the first dismissal was not an adjudication on the merits and he should be permitted to refile under the saving statute, § 516.230 RSMo 1978. He also argues that the first dismissal was without prejudice because it was merely a docket-clearing procedure handled by clerical employees, and not an order of the court.
The trial court has the inherent power to enter a judgment of dismissal, on its own motion, for failure to prosecute. Bindley v. Metropolitan Life Insurance Co., 335 S.W.2d 64, 69 (Mo.1960). An involuntary dismissal is with prejudice and bars assertion of the same cause of action if the court does not specify otherwise. Rule 67.03. Although a dismissal without notice...
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McMillan v. Wells
...has the inherent power to enter a judgment of dismissal, on its own motion, for failure to prosecute." Laubinger v. Missouri State Highway Comm'n, 726 S.W.2d 355, 356 (Mo.App.1987); Bindley v. Metropolitan Life Ins. Co., 335 S.W.2d 64, 69 (Mo.1960). Any defendant may move for an involuntary......
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Warren v. Associated Farmers, Inc.
...to apprise him of the proposed dismissal and to afford him an opportunity to object." Id. at 116, citing Laubinger v. Mo. State Hwy. Comm'n, 726 S.W.2d 355, 357 (Mo.App.1987), and W.M. Crysler Co., 377 S.W.2d at Here, Plaintiff was afforded due process of law because he received notice of t......
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Buxton v. Brenda Todd & Bank of Kirksville
...the trial court has the inherent power to dismiss a case, on its own motion, for failure to prosecute. Laubinger v. Mo. State Highway Comm'n , 726 S.W.2d 355, 356 (Mo. App. W.D. 1987). An involuntary dismissal can only be made with prejudice, however, if there is notice and an opportunity t......
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State ex rel. Willens v. Gray, WD
...with prejudice if there is notice and an opportunity to be heard before the dismissal is made. 1 See Laubinger v. Missouri State Highway Commission, 726 S.W.2d 355, 356 (Mo.App.1987). Bindley held that due process requires notice and an opportunity to be heard before an action may be dismis......