State ex rel. Missouri Highway and Transp. Com'n v. Kersey, 1
| Decision Date | 19 December 1983 |
| Docket Number | Nos. 12810-12833,No. 1,1,s. 12810-12833 |
| Parties | STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION (formerly State Highway Commission of Missouri), Appellant, v. A.P. KERSEY, Sr., et al., Exceptions of Public Water Supply Districtof Pemiscot County, Missouri, et al., Respondents. STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION (formerly State Highway Commission of Missouri), Appellant, v. Harry B. DOWDY, et al., Exceptions of Agnes Pierce, et al., Respondents. |
| Court | Missouri Court of Appeals |
Bruce A. Ring, Jefferson City, John W. Koenig, Jr., Sikeston, for appellant.
James E. Reeves, Ward & Reeves, Caruthersville, for respondents.
These 24 consolidated appeals arise from two condemnation suits in Pemiscot County. One suit ("the first case") 1 involved the taking of land for interstate highway 55. The other suit ("the second case") 2 involved the taking of land for interstate highway 155.
In the first case, appellant filed its petition November 18, 1969, to condemn 57 separate tracts. The commissioners' report was filed February 13, 1970. Date of taking was March 10, 1970.
In the second case, appellant filed its petition March 15, 1971, to condemn 40 separate tracts. The commissioners' report was evidently filed in early June, 1971. Date of taking was June 23, 1971.
Both suits were filed by appellant's district counsel, George Dawes, who was in charge of the suits until he retired March 1, 1980.
As of May 17, 1982, exceptions to the commissioners' reports remained pending as to three tracts in the first case and 21 tracts in the second case. In each instance, both sides were excepting. On that date (May 17, 1982) the trial court, on motions by the owners of all 24 tracts--and over the objection of appellant--dismissed all parties' exceptions for failure to prosecute. A separate order of dismissal was entered as to each tract. 3 Appellant appeals from each order.
Appellant recognizes the general rule that courts have the inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused. Esslinger v. Roach, 463 S.W.2d 861, 862 (Mo.1971); State ex rel. State Highway Commission v. Graeler, 495 S.W.2d 741, 743 (Mo.App.1973); City of Jefferson v. Capital City Oil Company, 286 S.W.2d 65, 68 (Mo.App.1956).
Appellant says, however (in point 1), that the trial court abused its discretion, in that appellant was "prosecuting the cause with due diligence." Appellant contends there was "a steady flow towards resolving all of the pending exceptions," and that the untried exceptions were not lying dormant, but rather were "waiting their turn."
The record belies this contention. In the first case, exceptions were filed as to 53 of the 57 tracts. Of those 53, exceptions were ultimately resolved as to 50. In all 50 instances, resolution was by settlement; there were no trials. Settlement activity was: 3 tracts in 1970, 9 in 1971, 17 in 1972, 7 in 1973, 10 in 1974, 3 in 1975 and 1 in 1979. Thus, after 1975, only one settlement occurred during the ensuing six years and four months until the orders of dismissal.
The three tracts in the first case where exceptions were dismissed for failure to prosecute were identified as tracts numbered 76, 84-A and 101. With respect to tract 76, Dawes testified he submitted justification for settlement to appellant's chief counsel on December 13, 1973. No settlement could be made without the chief counsel's approval. The chief counsel disapproved the settlement as to tract 76. Dawes recalled he attempted justification on the same tract August 30, 1978, and was again refused.
Regarding tract 84-A, owned by a public water supply district, Dawes explained that the commissioners' award was based on the replacement cost of a water line. Dawes and the water district agreed on the amount, but the chief counsel did not confirm the agreement.
Regarding tract 101, Dawes submitted settlement justification to the chief counsel on August 30, 1978, but received no response.
In the second case, exceptions were filed as to 38 of the 40 tracts. Of those 38, exceptions were ultimately resolved as to 17. In 16 of those instances, resolution was by settlement. There was one trial, which occurred in 1979. Settlement activity was: 1 tract in 1972, 5 in 1973, 1 in 1977, 7 in 1979 and 2 in 1980. We note that during one five-year period, 1974 through 1978, only one tract was resolved in the second case.
Settlement efforts, in varying degree, were made regarding the 21 tracts in the second case where exceptions were not resolved. The evidence showed there were seven tracts 4 as to each of which three separate settlement offers were made, nine tracts 5 where two settlement offers were made, and two tracts 6 where one offer was made. No further settlement efforts took place regarding any of those tracts.
Settlement efforts got further, but fell short, regarding the three other tracts in the second case. An agreement as to one 7 was sent to the chief counsel in 1978, but Dawes received no response. A justification was sent to the chief counsel as to another 8 in 1978, but was not approved. A settlement agreement as to the third 9 was approved by the chief counsel in 1978, but the landowners' attorney balked because of appellant's failure to settle a companion case.
Of the 18 tracts in the second case where negotiations never progressed beyond the rejection of offers, only six were ever set for trial. Of those six, one 10 "was set four times and taken off." Dawes did not recall why in each instance, but believed one cancellation was because he had an operation. The other five 11 were scheduled to be tried early in 1980, but no trials were held. All were continued at the request of the respective landowners, with Dawes agreeing as to one 12 of the five. None were ever rescheduled.
Dawes admitted that none of the unresolved exceptions were ever prepared for trial, that no depositions were taken regarding them, and that neither side submitted any interrogatories pertaining to them.
After Dawes retired on March 1, 1980, no activity occurred until July, 1981, when the cases were assigned to one of appellant's staff attorneys, John W. Koenig, Jr.
On July 29, 1981, Koenig filed a "notice of readiness" regarding tract 76 in the first case. The notice stated Koenig would request a trial setting at the September, 1981, law day. He did, and trial was set for December 18, 1981.
On October 8, 1981, Koenig filed similar notices as to tracts 84-A and 101 in the first case. However, before any trials occurred, the landowners filed their motions to dismiss, resulting in the dismissal of all exceptions.
In our review, we are mindful that the fact that the landowners had themselves filed exceptions to the commissioners' reports did not impair the landowners' right to move for dismissal of appellant's exceptions. City of Jefferson, 286 S.W.2d at 69. We further recognize that if there was unreasonable delay in appellant's prosecution of its exceptions, the landowners were not required to show they were injured thereby, or that appellant obtained some advantage therefrom. Id. at 68.
In deciding whether to order dismissal for failure to prosecute, a trial court may consider not only the length of delay, but attendant circumstances. Schreck v Parker, 388 S.W.2d 538, 541 (Mo.App.1965); State ex rel. State Highway Commission v. Milnes, 573 S.W.2d 727, 728 (Mo.App.1978). A fair test is whether the excepting party (here, appellant) had a reasonable opportunity to bring its exceptions to trial. Milnes, 573 S.W.2d at 728.
When the landowners moved for dismissal, the first case had been pending almost 12 years, and the second case had been pending ten and a half years. Only one set of exceptions had been tried during that time. Moreover, only one tract had been resolved in the first case since 1975, and only one tract had been resolved during a 5-year period, 1974 through 1978, in the second case. No settlements regarding any of the 24 tracts in issue...
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