Clinton Wheeler v. Edward Eftink, 2016 Mo. App. LEXIS 1122

Plaintiff Wheeler alleges Defendant Eftink negligently caused an automobile accident in March 2006 and initially sued in October 2006; discovery and depositions occurred and a May 2008 trial was set.
Plaintiff voluntarily dismissed his 2006 suit at the May 6, 2008 hearing after his co-plaintiff (his wife) settled.
Wheeler re-filed pro se on March 2, 2011; a summons was returned non est but listed Defendant’s new Oklahoma address; no further steps were taken for over three years.
Court notified Wheeler in August 2014 of potential dismissal for inactivity; he failed to appear at an October 7, 2014 dismissal conference and the case was dismissed without prejudice.
Wheeler re-filed a third time on September 16, 2015, alleging an additional injury (seizure episodes diagnosed in April 2013); the trial court dismissed the 2015 case with prejudice for failure to diligently prosecute.
On appeal Wheeler argued timeliness under the statutes and relied on Giles; the Missouri Court of Appeals affirmed, holding Wheeler failed to show the trial court abused its discretion in dismissing the action.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal with prejudice for failure to diligently prosecute was an abuse of discretion	Wheeler contends case was timely filed and delays were excused (e.g., difficulty locating Defendant and later diagnosis of seizure episodes)	Court should defer to trial court’s finding that Wheeler unreasonably delayed prosecution and did not diligently effect service or pursue the case	Affirmed: no abuse of discretion; trial court properly dismissed for lack of diligent prosecution
Whether discovery/diagnosis of seizure episodes justified the delay	Wheeler argues new seizure diagnosis (Apr. 2013) meant damages weren’t ascertainable earlier and delay was reasonable	Defendant points out many injuries were known earlier, Defendant’s updated address was on the returned summons, and Wheeler waited years without steps to proceed	Held: Diagnosis did not excuse years of dormancy; damages were objectively ascertainable earlier and trial court’s factual determination stands

Shirrell v. Missouri Edison Co., 535 S.W.2d 446 (Mo. banc 1976) (trial court’s inherent power to dismiss for failure to prosecute)
Lozano v. BNSF Ry. Co., 421 S.W.3d 448 (Mo. banc 2014) (abuse of discretion standard defined)
Peet v. Randolph, 103 S.W.3d 872 (Mo. App. E.D. 2003) (standards for dismissal for failure to prosecute)
Stephens v. Dunn, 453 S.W.3d 241 (Mo. App. S.D. 2014) (plaintiff must promptly secure service and advance action with due diligence)
Branson Hills Assocs., L.P. v. First Am. Title Ins. Co., 258 S.W.3d 568 (Mo. App. S.D. 2008) (reasonable opportunity to bring matter to trial as test for abuse)
West Central Concrete, LLC v. Reeves, 310 S.W.3d 778 (Mo. App. W.D. 2010) (mere delay insufficient; delay must be unnecessary)
Townsend v. Union Pacific R. Co., 968 S.W.2d 767 (Mo. App. E.D. 1998) (dismissal requires evidence delay was unnecessary)
Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo. App. E.D. 2005) (cause accrues when damage is substantially complete even if more damage later occurs)
Powel v. Chaminade College Prepatory, Inc., 197 S.W.3d 576 (Mo. banc 2006) (objective ‘capable of ascertainment’ test for accrual of claim)
Giles v. Carmi Flavor & Fragrance Co., Inc., 475 S.W.3d 184 (Mo. App. W.D. 2015) (discussed accrual and discovery in statute-of-limitations context; not controlling on diligent-prosecution issue)