Dana Commercial Credit Corp. v. Cukjati

• Decision Date: 19 July 1994
• Docket Number: No. 19184,19184
• Parties: DANA COMMERCIAL CREDIT CORPORATION, Plaintiff-Respondent, v. Jacob CUKJATI, Jr., and Advance Rental Centers, Inc., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 612

880 S.W.2d 612

DANA COMMERCIAL CREDIT CORPORATION, Plaintiff-Respondent, v. Jacob CUKJATI, Jr., and Advance Rental Centers, Inc. Defendants-Appellants.

No. 19184.

Missouri Court of Appeals,

Southern District,

Division Two.

July 19, 1994.

Thomas L. Williams, Roberts, Fleischaker, Williams & Powell, Joplin, for defendants-appellants.

Chris L. Weber, Checkett & Pauly, P.C., Carthage, for plaintiff-respondent.

GARRISON, Judge.

This is an appeal from a summary judgment in favor of Plaintiff. Plaintiff's suit against Defendants Jacob Cukjati, Jr. (Jacob) and Advance Rental Centers, Inc. (the corporation) was in two counts. Count I contained a claim against both Defendants for $14,938.71 plus interest and attorney's fees based on a lease of equipment (Lease No. 1) entered into by the corporation and guaranteed by Jacob. In Count II Plaintiff sought a judgment against only the corporation based upon another lease of equipment (Lease No. 2) in the amount of $7,224.27 plus interest and attorney's fees. Defendants' answer denied most of the allegations contained in the petition.

On August 2, 1993, four months after the answer was filed, Plaintiff served a Request For Admissions containing factual statements which, if admitted, would effectively establish the liability of both Jacob and the corporation under both of the leases in the amounts prayed for in the petition. Neither of the Defendants responded to the Request For Admissions within the twenty days allowed under Rule 59.01. ¹ Accordingly, on September 2, 1993, Plaintiff filed a Motion For Summary Judgment based upon the pleadings, affidavits and the Request For Admissions. One of the affidavits filed by Plaintiff in support of the motion was that of its senior account representative which recited that it was based upon personal knowledge and stated facts which would support a finding of liability of both Defendants under each of the leases in the same amounts pleaded in the petition and contained in the requests for admissions. ² Also filed was the affidavit of Plaintiff's attorney attesting that he had mailed the Request For Admissions to counsel for Defendants and that no response had been received.

On October 7, 1993, the day before the scheduled hearing on the Motion For Summary Judgment, Jacob filed a document entitled "Affidavit And Response To Request For Admissions" in which he purported to respond to Plaintiff's Request For Admissions. The response, however, was filed without obtaining leave of court to withdraw or amend the admissions made as a result of the failure to respond to the request within the time provided in Rule 59.01. At the same time, he also filed an "Affidavit And Response To Motion For Summary Judgment." Both the Response to the Motion For Summary Judgment and the purported Response to the Request For Admissions were filed by Jacob individually, with no indication they were also in behalf of the corporation. The following day, the trial court sustained the Motion For Summary Judgment and entered judgment against both Defendants under each count of the petition. Defendants appeal the entry of that judgment.

In their sole point on this appeal, Defendants contend that the trial court abused its discretion in granting the summary judgment because genuine issues of material fact were raised by the responses to the Request For Admissions and to the Motion For Summary Judgment. They do not contest the sufficiency of Plaintiff's showing pursuant to its Motion For Summary Judgment.

In an appeal from a summary judgment, we review the record in the light most favorable to the party against whom it was entered, according that party the benefit of all reasonable inferences. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The issue is one of law and our review is essentially de novo by which we test the propriety of the summary judgment by the same standards as those which should be employed by the trial court. Id.

To be entitled to a summary judgment, Plaintiff was required to establish that it had a right to a judgment as a matter of law by showing, in the manner provided in Rule 74.04, that there was no genuine dispute as to those material facts upon which it would have the burden of persuasion at trial. Id. at 381. Matters admitted pursuant to a request for admissions under Rule 59.01 may be used to make that showing. Rule 74.04(c); Lee v. Ofield, 847 S.W.2d 99, 101 (Mo.App.W.D.1992); Crawford v. Boatmen's Bank of West County, 637 S.W.2d 196, 198 (Mo.App.E.D.1982).

The procedure concerning requests for admissions of fact is contained in Rule 59.01. Under that rule, failure to file a timely response to a request for admissions constitutes an admission of the matters contained in the request. Lee v. Ofield, 847 S.W.2d at 101; Killian Const. Co. v. Tri-City Const. Co., 693 S.W.2d 819, 827 (Mo.App.W.D.1985). The matters thus admitted are "conclusively established" and bind the party to whom the requests were addressed. Killian Const. Co. v. Tri-City Const. Co., 693 S.W.2d at 827. This compares with an admission contained in a pleading and eliminates the need for further proof of the matters admitted. Id.

In the instant case, therefore, each of the Defendants "conclusively" admitted the matters contained in the requests by failing to file a timely response. Summarized, these admissions included execution of the leases and guaranties, receipt of the leased equipment, and the existence of the outstanding balances under the leases in the same amounts alleged in the petition. This result was not avoided by the filing of responses to the requests for admissions out of time without obtaining leave of court to amend or withdraw the admissions previously made.

Rule 59.01(b) provided, in pertinent part:

Any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.... [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

Defendants correctly argue that Rule 59.01 is not an absolute rule in that the trial court retains discretion to permit withdrawal or amendment of admissions. The rule specifically refers to, and obviously contemplates, the filing of a motion to authorize the late filing of responses to requests for admissions in order to effectuate an amendment or withdrawal of admissions previously made under the rule. Rule 59.01(b). See also Lee v. Ofield, 847 S.W.2d at 101; U.S. Clip Corp. v. McThal, Inc., 729 S.W.2d 658, 660 (Mo.App.S.D.1987); Commerce Bank of Fenton v. B.P.J. Enterprises, 659 S.W.2d 615, 618 (Mo.App.E.D.1983). The trial court has discretion in determining whether late responses to requests for admissions should be permitted. State ex rel. A.N.W. v. D.T.F., 788 S.W.2d 805, 805-806 (Mo.App.E.D.1990); American Bank of Princeton v. Stiles, 731 S.W.2d at 342; Crawford v. Boatman's Bank of West County, 637 S.W.2d at 197-198; Coates v. U.S. Fidelity & Guaranty Co., 525 S.W.2d 654, 655 (Mo.App.E.D.1975). A late response to a request for admissions made without leave of court, however, is ineffective. Rockwell International, Inc. v. Westport Office Equipment, 606 S.W.2d 477, 478-479 (Mo.App.W.D.1980). See also U.S. Clip Corp. v. McThal, Inc., 729 S.W.2d at 659-660.

Although Defendants failed to seek leave of court to do so in the instant case, they contend that the trial court nevertheless abused its discretion by failing to consider affidavits executed by Jacob as the equivalent of motions to withdraw or amend the previous admissions. These affidavits included Jacob's "Affidavit And Response To Request For Admissions." This "affidavit" was merely a sworn response to the earlier request for admissions and, as indicated earlier, was ineffective because it was filed after the time for response to those requests had lapsed and without leave of court to file it as an amendment or withdrawal of the admissions already made. Additionally, it did not purport to be in behalf of the corporation.

The other "affidavit" which Defendants contend should have been construed by the trial court as a motion to withdraw or amend the admissions was Jacob's "Affidavit And Response To Motion For Summary Judgment." That document, also filed in behalf of Jacob individually, was verified but contained only admissions or denials of the individual allegations contained in the motion for summary judgment, together with the following statements:

For further answer, the Defendant states that, pursuant to Rule 74.04, Missouri Rules of Civil Procedure, an issue of law and fact exists with regard to the validity of the signature on the lease and there is a genuine issue for trial.

For further answer, the Defendant states that, pursuant to Rule 74.04, Missouri Rules of Civil Procedure, this affidavit is not presented in bad faith or for the purpose of delay, but, rather, for the reason that the affiant genuinely believes the signature to be forged.

There is nothing in the record to indicate that either Defendant requested the trial court to consider the response to the motion for summary judgment as a response to the request for admissions. The trial court should not be convicted of error because of its lack of clairvoyance in discerning the intent of the parties or the existence of a request which was not presented to it.

An analogous situation occurred in Commerce Bank of Fenton v. B.P.J. Enterprises, Inc., 659 S.W.2d 615. In that case, a summary judgment was entered in a suit based on a promissory note and guaranty agreements. The plaintiff filed a request for admissions directed to all the defendants but no responses were filed. The following month, plaintiff filed a motion for summary judgment,...