Townsend v. Union Pacific Railroad

968 S.W.2d 767, 1998 Mo. App. LEXIS 918, 1998 WL 239334
CourtMissouri Court of Appeals
DecidedMay 12, 1998
DocketNo. 72585
StatusPublished
Cited by9 cases

This text of 968 S.W.2d 767 (Townsend v. Union Pacific Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Townsend v. Union Pacific Railroad, 968 S.W.2d 767, 1998 Mo. App. LEXIS 918, 1998 WL 239334 (Mo. Ct. App. 1998).

Opinion

AHRENS, Presiding Judge.

Plaintiff, Jimmy Townsend, appeals from the trial court’s dismissal with prejudice of his FELA claim against his employer, Union Pacific Railroad Company. Plaintiff contends on appeal that the trial court abused its discretion. We affirm.

Plaintiff filed an action in August 1993 against his employer, Union Pacific Railroad Company, under the Federal Employees Liability Act (FELA), 45 U.S.C. sections 51-60, for injuries he suffered at work. After several continuances, the trial court set the case on its February 24,1997 trial docket. In late December 1996, plaintiff’s attorney, Mark Dupont, filed a motion to withdraw as plaintiff’s counsel for unspecified ethical reasons. The trial court granted Mr. Dupont’s motion to withdraw on January 23, 1997. Plaintiff then filed a pro se motion on January 31, 1997 to continue the case from the February 24,1997 docket so that he could secure a new attorney.

The trial court held a hearing on plaintiff’s pro se motion for a continuance on February 10. Apparently at this hearing, the trial court did set a new trial date of May 12, 1997. However, the trial court also notified plaintiff at the hearing that if he did not enter his appearance through counsel by March 26, 1997, it would dismiss his case with prejudice. The trial court memorialized its admonishment to plaintiff in an order dated February 24,1997.

Plaintiff failed to enter his appearance through counsel by March 26 and the trial court dismissed his ease with prejudice on March 31, 1997. Plaintiff filed a motion to set aside the dismissal. The trial court denied that motion on April 28, 1997. This appeal follows.

In his only point on appeal, plaintiff alleges the trial court erred in dismissing his FELA action with prejudice. It is difficult to determine whether the trial court dismissed plaintiffs cause of action because of his failure to obey its February 24 order or whether it dismissed his cause of action for failure to prosecute. However, regardless of the basis for the trial court’s dismissal, we find that it did not abuse its discretion in dismissing plaintiff’s cause of action.

We will first analyze the trial court’s dismissal of plaintiff’s claims from the perspective that the trial court dismissed the claim because of plaintiff’s failure to obey its February 24 order. We will reverse the trial court’s dismissal of a plaintiffs cause of action under Rule 67.03 for failure to comply with a court order only if the dismissal constitutes an abuse of discretion. Butler v. Circulus, Inc., 557 S.W.2d 469, 476 n. 3 (Mo.App.1977) (citing federal cases analyzing the [769]*769analogous federal rule). A trial court abuses its discretion when its judgment is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the appellate court’s sense of justice and indicates a lack of careful consideration. Embree v. Norfolk & Western R.R. Co., 907 S.W.2d 319, 327 (Mo.App.1995).

Plaintiff contends that the trial court erred in dismissing his case for failing to obey its February 24 order because the trial court did not have the power to enter that order. It is true that a trial court may dismiss a claim for failure to obey a court order only if it had the power to enter the underlying order. Butler, 557 S.W.2d at 480. However, we find that the trial court did have the power to enter the February 24 order.

Plaintiff predicates his contention that the February 24 order was not lawful on the argument that it compelled him to employ counsel and gave him no opportunity to proceed pro se. A litigant does have the right to proceed pro se. Brancato v. Wholesale Tool Co., Inc., 950 S.W.2d 551, 556 (Mo.App.1997). Also, it is true that the trial court’s February 24 order did not expressly deal with the possibility of plaintiff proceeding pro se. However, after viewing the entire record, we find that the February 24 order was lawful and did not deprive plaintiff of his right to proceed pro se.

The order in dispute here was in direct response to plaintiff’s pro se motion for a continuance. In his motion, plaintiff stated he was seeking a continuance because he needed additional time to find a new attorney. Thus, plaintiff had unequivocally expressed to the trial court that he wished to obtain new counsel before proceeding with his case. The trial court’s order was simply an attempt to balance plaintiff’s desire for additional time to obtain counsel with its need to proceed with a case that had languished for almost four years in the circuit court. We find that this sort of balancing is well within the trial court’s inherent authority to control its docket. See Collins v. Director of Revenue, 691 S.W.2d 246, 254 (Mo. banc 1985).

We also find that the trial court did not prohibit plaintiff from proceeding pro se. There is nothing in the trial court’s February 24 order, or any other order from the trial court, that prevented plaintiff from notifying the trial court before March 26 that he intended to proceed pro se and that he would be ready for trial on May 10.

This record supports a finding that the trial court had the authority and power to legally enter its February 24 order. Furthermore, this record indicates that the trial court’s determination to dismiss plaintiff’s cause of action was not clearly against the logic of the circumstances existing at the time of dismissal and does not shock this Court’s sense of justice. Thus, the trial court did not abuse its discretion in dismissing plaintiff’s cause of action under Rule 67.03 for failure to comply with a court order.

We next consider whether the trial court’s dismissal was proper if the dismissal was based on the plaintiff’s failure to prosecute his case. Dismissal for failure to prosecute under Rule 67.03 is a matter within the trial court’s discretion. Belleville v. Director of Rev., 825 S.W.2d 623, 624 (Mo. banc 1992). Accordingly we will not reverse the trial court’s dismissal for failure to prosecute unless it constitutes an abuse of that discretion. Id.

Plaintiff first asserts that the trial court’s dismissal is not sustainable on a failure to prosecute basis because the dismissal did not comply with the procedures outlined in St. Louis City Local Rule 37.1.1. Plaintiff contends that once a circuit court promulgates a local rule outlining a procedure for dismissal of cases, it may only dismiss eases by utilizing that procedure. Thus, plaintiff argues that because Rule 37.1.1 provides for the dismissal of a case by placing it on the dismissal docket, the trial court may only dismiss the case after it places the case on the dismissal docket. We disagree.

It is true that once a trial court promulgates a local rule prescribing the manner in which it will dismiss cases on its dismissal docket, it must follow the local rule in dismissing cases on its dismissal docket. Henningsen v. Independent Petrochemical Corp.,

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Bluebook (online)
968 S.W.2d 767, 1998 Mo. App. LEXIS 918, 1998 WL 239334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-union-pacific-railroad-moctapp-1998.