Harris v. Desisto

• Court: Missouri Court of Appeals
• Writing for the Court: EDWIN H. SMITH
• Citation: Harris v. Desisto, 932 S.W.2d 435 (Mo. App. 1996)
• Decision Date: 01 October 1996
• Docket Number: No. WD,WD
• Parties: Russell C. HARRIS, et. al., Respondent, v. Ralph J. DESISTO, Appellant. 52504.

Page 435

932 S.W.2d 435

Russell C. HARRIS, et. al., Respondent, v. Ralph J. DESISTO, Appellant.

No. WD 52504.

Missouri Court of Appeals Western District.

Oct. 1, 1996.

Rehearing Denied Nov. 26, 1996.

Marc E. Elkins, William E. Hanna, Kansas City, for respondent.

David A. Ramsay, Mary R. McCormick, Ramsay, Ford, Hiles & Cooper, Kansas City, for appellant.

Before HANNA, P.J., SMART and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

This is an appeal from a judgment which purports to rescind a "Joint Development Agreement" for breach and awards restitution in the amount of $53,551.37 and attorneys' fees under the agreement in the amount of $39,258.23. Appellant raises five points on appeal. The first two points address appellant's claim that he was ill and could not attend his trial and that the trial court erred in denying his motion for continuance and motion for new trial based on the same issue. The other three points deal with the inconsistency of the judgment in ordering rescission, but awarding damages on the contract and the sufficiency of the evidence supporting breach and rescission.

Facts

Russell C. Harris, Jr., and Hannelore I. Harris, "respondents," as Co-Trustees of Hannelore I. Harris Trust, and Ralph J. Desisto, "appellant," entered into a "Joint Development Agreement" on November 3, 1993, under which respondents were to purchase a tract of real estate and provide financing for the development of a residential subdivision in Clay County, Missouri, known as Beacon Hill Subdivision, Phase III. Appellant was to act as the general contractor for the development of Phase III and was granted the exclusive right to "purchase or cause to be purchased" lots in Phase III for a period of two years after completion of the development phase. Completion of the development was to be evidenced by the recording of the final plat for the subdivision. Appellant, as the general contractor, was responsible for completing the development "in a timely and workmanlike manner." The agreement provided that the Trust and appellant would split the profits resulting from home sales in Phase III.

Respondents raised the money to purchase Phase III in 1993 by using their own home as collateral on a loan from United Missouri Bank, "UMB." Respondents used the UMB loan to purchase the fee title to Phase III in the name of the Hannelore I. Harris Trust, "the Trust." The Trust then entered into a Joint Development Agreement with appellant.

Sometime in July of 1994, appellant moved to Florida, after which he refused to deal with subcontractors, causing respondent Mr. Harris to act as general contractor in dealing with subcontractors and administering contracts, including accepting bids, obtaining plats, lien waivers, and permits for the city and county. On or about November 11, 1994, the respondents mailed to the appellant by certified mail their notice of termination of the agreement for breach. On November 18, 1994, appellant filed a "Memorandum Relating to Joint Development Agreement" with the Clay County Recorder of Deeds on Phase III. This effectively clouded the title to the Phase III lots, preventing respondents after terminating their agreement with appellant from constructing homes thereon and selling the same.

So respondents could clear-up the title to Phase III and proceed with the development, they filed on January 12, 1995, their petition in this cause in two Counts. Count I was for rescission and Count II for breach of fiduciary relationship. Appellant filed his Answer and Counter-Claim on March 20, 1995, and was not in default. The case was first set for trial on September 28, 1995. The day before trial, appellant filed a bankruptcy petition in Florida. Respondents obtained an "Order Granting Motion for Relief from Automatic Stay" from the United States Bankruptcy Court for the Southern district of Florida to proceed to trial. On December 6, 1995, the trial court granted appellant's trial counsel's motion to withdraw. The case was ultimately set for trial without a jury on February 1, 1996.

On or about January 29, 1996, appellant filed his pro se Motion for Continuance, accompanied by an unverified letter from his doctor, advising the trial court that appellant was suffering from advanced acute prostate hypertrophy and that it was not advisable that he travel to Missouri for trial. After the trial court denied this motion, appellant filed a motion for reconsideration on January 30, which was also denied.

On February 1, 1996, respondents appeared with counsel for trial, but appellant did not. On the same day, after considering the evidence presented by respondents, the trial court signed a judgment entry, provided by respondents' counsel, which, inter alia, ordered the "Memorandum" of appellant filed with the recorder of deeds "to be of no further force or effect and stricken." The trial court in its judgment entry also ordered the Joint Development Agreement rescinded and awarded to respondents restitution in the amount of $53,551.37 and attorneys' fees in the amount of $39,258.23. Id.

On March 1, 1996, appellant filed his motion for new trial, after retaining counsel, with the sole issue raised that the trial court erred in not sustaining his motion for continuance. L.F. 95-97. After denial of his motion for new trial, appellant filed a timely notice of appeal. L.F. 159.

I.

In Point I, appellant claims the trial court erred in denying his motion for continuance. Appellant contends that it was an abuse of discretion for the trial court to deny his motion in that in doing so the trial court denied him his right to a fair trial on the merits and the special protection of that right afforded to nonresidents under Rule 65. We disagree.

Rule 65 governs continuances in civil cases. Rule 65.01 provides that a continuance can be granted for "good cause shown." The grant or denial of an application for continuance, even one premised upon the illness of a party, rests within the sound discretion of the trial court. In re Marriage of Frankel, 550 S.W.2d 896, 898 (Mo.App.1977); see also Nixon v. Director of Revenue, 883 S.W.2d 945, 946 (Mo.App.1994). No abuse in denying the continuance will be found unless the appellate court finds the trial court acted arbitrarily or capriciously. Nixon, 883 S.W.2d at 946. In determining whether the trial court acted arbitrarily or capriciously, the court's decision will be given every favorable intendment. Id. at 946; Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 207 (Mo. banc 1991). The denial of a continuance is rarely reversible error. Frankel, 550 S.W.2d at 898; Blessing v. Blessing, 539 S.W.2d 699, 702-703 (Mo.App.1976). "Only in extreme cases where it clearly appears that the moving party ... is free of any dereliction," will an appellate court find an abuse of discretion in denying a motion for continuance. Wright v. Price, 871 S.W.2d 12, 14 (Mo.App.1993).

Appellant argues that the trial court abused its discretion in denying his motion for continuance in that he was physically unable to travel to Missouri from Florida for trial on February 1, 1996, because he was suffering from "acute prostatic hypertrophy." Appellant attached to his pro se motion for continuance a letter from his doctor indicating he had advised appellant not to travel. The letter was not in affidavit form. On his motion for new trial, appellant introduced evidence by way of a doctor's affidavit that on February 23, 1996, he underwent surgery for his condition and that he could travel to Missouri for trial after March 31, 1996. Although the surgery occurred on February 23, 1996, the doctor's affidavit indicated that he advised the appellant to seek "emergency" care on January 30, 1996.

The trial court in denying appellant's initial motion and motion for reconsideration enumerated instances of what the court perceived to be delay tactics by the appellant. The list included the following: failure to appear for his deposition; withdrawal of his attorney; and, the filing of bankruptcy. After denying appellant's motion for new trial, the sole basis for which was the court's denial of appellant's application for continuance, the trial court stated that:

I'm not saying he wasn't ill. I'm not saying that. I'm not accusing his doctor of anything. He may very well have been ill. He may very well have been unable to travel. But, I wasn't, number one, convinced of it. Secondly, he ignored the other possibilities that I gave him such as having you here on his behalf on February 1st or Mr. Jensen or one of the other attorneys that he had contacted at one time or another who had contacted counsel although I don't think they ever entered their appearance.

Supp. Tr. 10. From this and the court's denial of appellant's application for continuance and motion for new trial, we can infer that the trial court found that the appellant: 1. was able to travel, but elected not to travel to Missouri in an attempt to further delay the trial of his case; and, 2. ignored the opportunity to have counsel present for trial. ¹ Although the trial court indicates it was not accusing appellant's doctor of "anything," it is apparent from its statement that the court did not find the doctor's letter to be totally credible, which is within its discretion. McLain v. Johnson, 885 S.W.2d 345, 348 (Mo.App.1994).

In support of his argument here, appellant cites us to Anderson v. Anderson, 669 S.W.2d 624 (Mo.App.1984). Anderson is distinguishable on the facts. In Anderson the court reversed and remanded for a new trial finding that the trial court had abused its discretion in not granting a continuance where the appellant was not only in the hospital at time of trial, but only had four days, two of which were Saturday and Sunday, between withdrawal of counsel and trial. The court held that it was a combination of these circumstances that necessitated the continuance. Here, we do not have a combination of such circumstances.

Regardless of...