Great Western Trading Co. v. Mercantile Trust Co. Nat. Ass'n

• Decision Date: 15 November 1983
• Docket Number: No. 45862,45862
• Citation: Great Western Trading Co. v. Mercantile Trust Co. Nat. Ass'n, 661 S.W.2d 40 (Mo. App. 1983)
• Parties: The GREAT WESTERN TRADING COMPANY, Plaintiff-Appellant, v. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, and Mitsubishi Bank, Defendants- Respondents.
• Court: Missouri Court of Appeals

Page 40

661 S.W.2d 40

The GREAT WESTERN TRADING COMPANY, Plaintiff-Appellant, v.MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, and Mitsubishi Bank, Defendants- Respondents.

No. 45862.

Missouri Court of Appeals,

Eastern District,

Division Eight.

Nov. 15, 1983.

Clark H. Cole, St. Louis, for plaintiff-appellant.

David Wells, David S. Slavkin, St. Louis, for defendants-respondents.

KAROHL, Presiding Judge.

Plaintiff-appellantGreat Western Trading Company, a limited partnership, filed a civil suit against defendants-respondentsMercantile Trust Company National Association and Mitsubishi Bank on January 12, 1977.On April 16, 1982, the trial court granted defendants' motion and dismissed plaintiff's amended petition with prejudice for failure to comply with discovery orders.Plaintiff appeals from that order.

Plaintiff argues that in dismissing the petition with prejudice and overruling plaintiff's motion to set aside the dismissal, the trial court abused its discretion in that: (1)plaintiff's conduct did not come within the requirements of Rule 61.01;(2)plaintiff was without counsel at the time of the dismissal; (3)plaintiff's limited partners had no notice of the motion to dismiss or the hearing on the motion; and (4)defendant Mitsubishi was in default at the time it moved for dismissal.We affirm.

Since the trial court dismissed the cause of action on procedural grounds occurring before trial, the elements of the cause of action are unrelated to the issues on appeal.We need only say that the lawsuit arose out of plaintiff's sale of soybeans to a Japanese buyer, where funds were allegedly improperly transferred from plaintiff's checking account with defendant Mercantile to defendant Mitsubishi Bank.

Plaintiff, a Nebraska limited partnership, had its principal office in Omaha, Nebraska, and had a checking account with defendant Mercantile.Eugene P. Duffy was the general partner, and Gilbert C. Swanson, Jr. and Gerald E. Sawall were the limited partners.Nothing in our record indicates that the limited partners participated directly in the case but their addresses appeared in plaintiff's answers to interrogatories filed in 1978.

Plaintiff's suit was filed on January 12, 1977.Defendant Mercantile answered, ¹ and on June 14, 1977, filed a written request for plaintiff to produce certain documents for inspection and copying on June 22, 1977, the date of Eugene Duffy's deposition.At the deposition, Duffy stated that he did not have the requested documents with him, but that he would produce them.Duffy was unable to answer many questions at the deposition without the documents.In December, 1977, plaintiff responded to the motion to produce, stating that it either did not have such documents in its possession or that it had produced the documents at Duffy's deposition.

Defendant Mercantile filed a second request for documents in July, 1978.As plaintiff failed to respond to the request, Mercantile moved for an order compelling answers to interrogatories and production of documents.On January 5, 1979, the trial court ordered plaintiff to produce the documents within thirty days.Plaintiff responded on February 20, 1979, stating that the requested documents would be produced at plaintiff's counsel's office in Kansas City, Missouri.The record is unclear as to whether Mercantile made arrangements to get the documents at that time, but it is clear that plaintiff has never produced the documents.

Plaintiff amended its petition in March, 1980, adding defendant Mitsubishi.After more pleadings were filed and continuances granted, Mercantile filed a notice to take Duffy's deposition on January 18, 1982.Duffy failed to appear and both defendants made a motion to dismiss or to compel Duffy's appearance at a deposition prior to the scheduled trial date of February 22, 1982.The trial court ordered plaintiff to produce Duffy to appear for his deposition.When Duffy had not been produced by February 16, 1982, the trial court vacated the February 22, 1982 trial date, set the trial for June 7, 1982, and entered an order directing Duffy to appear for the deposition by March 2, 1982, stating that if he failed to appear, he would be precluded from testifying at trial.

Duffy appeared for deposition at the St. Louis offices of defendants' counsel on February 26, 1982.Duffy again was unable to answer certain questions without having the documents which plaintiff had been ordered to produce and had never done so.At the end of the day, the parties agreed to reconvene the next morning to complete the deposition.

Duffy failed to appear for his deposition the next day.Plaintiff's counsel produced a telegram from Duffy, stating that he had to fly to Omaha on business and would not be at the deposition.At that time, plaintiff's counsel announced his intention to withdraw.

On March 12, 1982, plaintiff's counsel filed a motion for leave to withdraw, citing plaintiff's reckless attitude regarding discovery obligations.The motion stated that, contemporaneous with the filing of the motion, counsel had advised plaintiff of intention to withdraw.The trial court granted leave to withdraw on that same day, and sua sponte granted plaintiff thirty days to obtain new counsel.

Defendants filed a motion to dismiss on March 15, 1982, and sent a copy to Duffy by certified mail.Duffy was also sent notice on March 18, 1982 of a hearing on the motion to dismiss on April 16, 1982.On April 6, 1982, Duffy filed a pro se motion to set aside the order granting his counsel leave to withdraw, acknowledging receipt of the motion to dismiss, and mentioning the hearing date.The court never acted on Duffy's motion.

On April 16, 1982, more than thirty days after the withdrawal of plaintiff's counsel, the trial court sustained defendants' joint motion to dismiss with prejudice.No attorney entered an appearance on plaintiff's behalf, although an attorney may have been present.

Subsequently, on May 14, 1982, new counsel appeared on behalf of plaintiff, and moved to set aside the dismissal on the grounds that plaintiff was not represented by counsel when the court sustained the motion to dismiss, and that the limited partners had not been notified of the motion to dismiss.Plaintiff's counsel also filed an affidavit of Mr. Stoup, plaintiff's former counsel, stating that he was not aware of the order giving plaintiff thirty days to obtain new counsel.The affidavit also stated that Great Western had assigned its cause of action to Mr. Swanson, both a creditor of plaintiff and one of the limited partners, and another creditor company, in 1976, and that Stoup had also been representing the interests of those parties.The trial court refused to set aside the dismissal.

Rule 61.01(d)(2) authorizes the trial court to dismiss the action or proceeding for failure to comply with an order to produce documents.Rule 61.01(f), similarly authorizes a dismissal for failure of a party to appear for deposition.The trial court is vested with wide discretion to administer the rules of discovery.Wipke v. Louisiana Farm Supply, Inc., 622 S.W.2d 772, 774(Mo.App.1981).The court's exercise of discretion is subject to review and will not be disturbed unless exercised unjustly.In re Marriage of Dickey, 553 S.W.2d 538, 541(Mo.App.1977).

We find no abuse of discretion here.The facts, recited in detail above, clearly establish a pattern of repeated disregard of the court's discovery orders.Duffy had no legally acceptable justification for his refusal to produce documents and failure to attend his depositions.The record reflects a willful, contumacious disregard of the court's authority, and we find that the court did not abuse its discretion in dismissing the action with prejudice as authorized under Rule 61.01.SeeMcVeigh v. Faith Hospital Ass'n, 647 S.W.2d 615(Mo.App.1983);Portell v. Portell, 643 S.W.2d 18(Mo.App.1982)(default judgment);Wipke v. Louisiana Farm Supply, Inc., 622 S.W.2d 772(Mo.App.1981);City of Columbia v. Bil-Nor Construction Co., 411 S.W.2d 856(Mo.App.1967)(default judgment).Plaintiff's first point is denied.

Plaintiff's second point contests the dismissal on the ground that the trial court wrongfully granted counsel's motion to withdraw.The motion for leave to withdraw stated that counsel notified plaintiff of intention to withdraw contemporaneous with the motion.Further, the court granted plaintiff thirty days to obtain new counsel.

Plaintiff complains that because of lack of notice of counsel's withdrawal it was unrepresented at the motion to dismiss.This argument is refuted, however, by Duffy's pro se motion to the court on April 6, 1982.The motion was to set aside leave to withdraw "until April 12, 1982."Although Duffy alleged that Stoup failed to properly advise him of the motion to withdraw, he acknowledged that on April 2, he received notice of the April 16 hearing on the motion to dismiss.Duffy also mentioned "counsel to be named," and that...