Hoodenpyle v. Schneider Bailey, Inc., WD

• Citation: 748 S.W.2d 683
• Decision Date: 02 February 1988
• Docket Number: No. WD,WD
• Parties: David L. HOODENPYLE, Respondent, v. SCHNEIDER BAILEY, INC., Appellant. 38900.
• Court: Court of Appeal of Missouri (US)

Page 683

748 S.W.2d 683

David L. HOODENPYLE, Respondent, v. SCHNEIDER BAILEY, INC., Appellant.

No. WD 38900.

Missouri Court of Appeals,

Western District.

Feb. 2, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 29, 1988.

Application to Transfer Denied May 17, 1988.

Kenneth Morgens, Kansas City, for appellant.

James S. Formby, Kansas City, for respondent.

Before KENNEDY, C.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

This appeal involves an action for replevin and conversion brought by the owner of a taxicab against the owner of a motor vehicle service center. The service center, Schneider Bailey, Inc., appeals from a judgment on a verdict in favor of the cab owner, David L. Hoodenpyle.

Hoodenpyle initiated the transaction that eventually resulted in the lawsuit by taking his cab, a 1978 Plymouth, to Schneider Bailey for repair in early September, 1982. After two or three days, the problem was identified and he was given an estimate of repair costs of between $250 and $300. The parties dispute what the estimate represented; Hoodenpyle understood it to be the total cost of the repair, and Schneider Bailey asserting somewhat incredibly that it was for parts only and that Hoodenpyle had expressed no interest in labor costs or in the total cost of the repair. Twenty-two days after the go ahead for the work was given, Hoodenpyle was advised the car was ready. He was presented with a repair bill for nearly $800. Hoodenpyle contended most of the work was unauthorized. His offer of $300 to settle the matter was refused on several occasions. Schneider Bailey retained control of the taxicab demanding payment of the entire bill. Hoodenpyle filed his action in November, 1983. The suit sought to replevin the car and for damages in the form of revenue lost by Hoodenpyle from rentals of the cab to other drivers or his use of the cab.

Interrogatories were sent to Schneider Bailey by Hoodenpyle in early February, 1984. Two months later, in April, 1984, Schneider Bailey had not answered and Hoodenpyle sent the "golden rule" letter required by local rules of the circuit court prior to moving to compel answers. In late May, 1984, the court issued an order in response to Hoodenpyle's motion which compelled Schneider Bailey to answer within fifteen days. The order noted that failure to answer would result in sua sponte imposition of sanctions. Within the time period, Schneider Bailey filed answers to some of the interrogatories and filed objections to others. Believing that objections were not acceptable under the court's order, Hoodenpyle sent a second "golden rule" letter to Schneider Bailey in mid-July, 1984, seeking answers to the interrogatories to which objections were made. Receiving no response, Hoodenpyle moved for sanctions in late August. On September 19, 1984, the trial court sustained the motion for sanctions and entered judgment by default in favor of Hoodenpyle, limiting trial of the case to the issue of damages. Separate motions by Schneider Bailey to reconsider and to reinstate its pleadings were overruled.

Two jury trials were held solely on the amount on damages. The first, which ended in November, 1985, resulted in a total judgment for Hoodenpyle for $25,985.00. In February, 1986, however, the trial court sustained Schneider Bailey's motion for a new trial as to damages. The second trial, the case now on appeal was tried in September, 1986, and ended with judgment in favor of Hoodenpyle for $27,193.00. Hoodenpyle, without his cab since 1982, was awarded $1300.00 on the replevin count representing the car's value, and $24,392.00 loss of use. On the conversion count he got $1.00 actual and $1500 in punitive damages.

Schneider Bailey raises four main points on appeal. The first is the alleged error in sustaining Hoodenpyle's motion for sanctions and overruling its motions for reconsideration and reinstatement of pleadings. Under this point Schneider Bailey argues Hoodenpyle failed to comply with local sixteenth circuit court rules requiring the filing of an affidavit relating the "golden rule" communications, as well as the attaching of a copy of the written communication relied on in applying for sanctions. Schneider Bailey notes a provision of the local rule that failure to comply with the rule shall be sufficient ground for overruling the motion. Neglected by Schneider Bailey is the grant of discretion to the trial court in determining whether noncompliance results in overruling of the motion for sanctions. Given this discretion, this court will not disturb the action of the trial court.

Also under this point, Schneider Bailey argues the trial court "compounded the prejudicial error" by utilizing the drastic remedy of Rule 61.01(b). Supreme Court Rule 61.01 deals with discovery sanctions; subsection (b) deals specifically with the failure to answer interrogatories. The rule allows a court to enter an order striking pleadings, dismissing an action, or rendering a default judgment, among others, for the failure to timely answer or object to interrogatories. The court may act upon motion and reasonable notice and make such orders "as are just." Schneider Bailey contends its objections, on definitional and relevancy grounds, but without discussing timeliness, were properly raised and should preclude sanctions unless and until ruled upon. It concludes, therefore, the granting of sanctions was an abuse of discretion.

"The imposition of sanctions lies within the sound discretion of the trial court. Upon review, determination is made if there has been an abuse of that discretion and the absence of any abuse requires the action of the trial court to be sustained." Harting v. Stout, 690 S.W.2d 458, 459 (Mo.App.1985); Peoples-Home Life Insurance Company v. Haake, 604 S.W.2d 1, 4 (Mo.App.1980). Here, both parties were aware of the consequences of failing to comply with the court's order calling for the filing of answers to interrogatories some of which went unanswered for over seven months before sanctions were imposed. Portell v. Portell, 643 S.W.2d 18, 20 (Mo.App.1982). A comparable case is J & J Window Sales v. Mueller, 567 S.W.2d 153 (Mo.App.1978). In Mueller, the court entered an order requiring the defendant to answer plaintiff's interrogatories. Id. On the last day that the defendant was allowed to answer the interrogatories, she filed answers to eight and objected to two. Id. at 154. The court entered judgment in accord with its order. Id. Noted by the court of appeals was the lack of any motion on the part of the defendant to be allowed to file objections or any ruling allowing the filing of late objections. Id. The court of appeals concluded the defendant had failed to observe the twenty day limit for filing answers to interrogatories, and had failed to comply with the court's order so that the court was acting well within its prerogatives under Rule 61.01(b) in imposing the sanction of striking the defendant's answer and rendering judgment by default against her. Id. On the similar facts here, it is held trial court was acting within the range of its discretion. This point is denied.

Schneider Bailey's second point is the jury had no reasonable criteria on which to base an award for loss of use of the cab because of the improper exclusion of evidence by the trial court of the income history of Hoodenpyle's taxicab business.

"The measure of damages in a replevin case is the use value of the property, which may be measured by its rental value." Kansas City Diesel Power Company, Inc. v. Kirloskar, Inc., 647 S.W.2d 841, 849 (Mo.App.1983).

But rental value will not furnish the measure of damages for loss of use of an automobile. For the rental value of an automobile includes necessarily a substantial sum for wear and tear and depreciation. No definite general rule can be laid down except that the award by verdict or judgment should be fair and reasonable compensation, according to the circumstances of each case. * * * Elements ordinarily essential to such a finding would be the value of the automobile, its rental value, less the proportion of this rental value which covers the wear and tear and depreciation in the use of the automobile, and the period of necessary deprivation of use.

Vetter v. Browne, 231 Mo.App. 1147, 85 S.W.2d 197, 199 (1935). During the trial, Hoodenpyle testified to the value of the cab, its rental value as he rented it out, his expenses for maintenance, repair, and payments to Yellow Cab, as well as miscellaneous expenses. He also established the period of necessary deprivation. The jury had sufficient evidence on which to base an award for loss of use damages.

Schneider Bailey argues, however, that Hoodenpyle's federal income tax returns from prior years were relevant and should have been admitted to show income amounts less than would have been earned had the cab been available and rented out for the two shifts a day consistent with Hoodenpyle's testimony. Unfortunately, Schneider Bailey made no offer of proof at trial and leaves unclear here how the...