Kessinger Hunter Management Co. v. Davis, No. WD
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | Before GAITAN; ULRICH; GAITAN; MANFORD |
| Citation | 782 S.W.2d 426 |
| Parties | KESSINGER HUNTER MANAGEMENT COMPANY, Respondent, v. William J. DAVIS, Appellant. 41226. |
| Docket Number | No. WD |
| Decision Date | 26 December 1989 |
Page 426
v.
William J. DAVIS, Appellant.
Western District.
Page 427
William J. Davis, Costa Mesa, Cal., pro se.
Cindy L. Reams, Kansas City, for respondent.
Before GAITAN, J., Presiding, and MANFORD and ULRICH, JJ.
ULRICH, Judge.
Kessinger Hunter Management Company sued appellant, William J. Davis, for rent and possession of its property. Mr. Davis appeals from the judgment entered in Kessinger Hunter's favor. The judgment is affirmed.
On August 20, 1981, Mr. Davis and Michael D. Clayman leased from the Bay Colony Property Company, Inc., (Bay Colony) a Delaware Corporation, office space located in a Kansas City office building. East West Bryant Limited Partnership (East West Bryant), a Missouri limited partnership, is the successor in interest to Bay Colony. Kessinger Hunter Management Company (Kessinger Hunter) is a Missouri corporation acting as East West Bryant's agent pursuant to agreement. The lease anticipated that the tenants would practice law in the rental space and proscribed assignment of the tenants' interest without the landlord's prior written consent.
Kessinger Hunter filed two separate actions against the named tenants after monthly rent was in arrears. A petition for rent and possession was filed in the Circuit Court of Jackson County on November 20, 1985. A petition for possession was filed in the Associate Circuit Division of the Circuit Court of Jackson County on December 11, 1985. These actions were consolidated by order of the Circuit Court on February 11, 1986.
Kessinger Hunter filed a motion on March 26, 1986, for summary judgment on the issues of contractual liability and the right to possession of the premises. The court granted summary judgment on May 30, 1986, but reserved for evidentiary hearing the extent of plaintiff's damages. 1 Mr. Davis, after receiving notice, failed to appear on September 19, 1988, at the trial to
Page 428
determine damages. Kessinger Hunter appeared and introduced evidence. On September 30, 1988, the court made findings of fact and conclusions of law and entered final judgment in favor of Kessinger Hunter and against Mr. Davis in the amount of $56,378.51, which was reduced by $3,500 setoff for amounts previously received in settlement from Mr. Clayman. Additional relevant facts will be stated when discussing points raised by Mr. Davis.Mr. Davis contends that the trial court committed reversible error by 1) failing to grant a requested legislative continuance pursuant to Rule 65.06; 2) entering summary judgment on the issues of contractual liability and the right to possession of the premises without providing him notice of a hearing on plaintiffs' motion; 3) allowing his attorney to withdraw and failing to give him reasonable time to get another; and 4) granting partial summary judgment despite the existence of disputed relevant facts, in violation of Rule 74.04.
Mr. Davis' first point alleges trial court error by refusing to grant him a requested Rule 65.06 continuance. Rule 65.06 provides that a court may grant a continuance in a civil action when a party or his counsel is a member of either house of the general assembly, is in attendance at a session of the legislature, and his attendance is necessary to a fair and proper trial or other proceedings in the civil action. One of Mr. Davis' attorneys, Senator Henry Panethiere, entered his appearance on February 10, 1986, and filed a Rule 65.06 request for continuance on the same date, in the case filed in the associate circuit division, prior to consolidation of the two cases on February 18, 1986.
Before 1947, Missouri courts held that, where counsel is a member of the legislature, the correct filing of a request for continuance with supporting affidavits compelled trial courts to grant the requested continuance. 2 State v. Thatch, 355 Mo. 75, 195 S.W.2d 106 (1946); State v. Myers, 352 Mo. 735, 179 S.W.2d 72 (1944); State v. Clark, 214 Mo.App. 536, 262 S.W. 413 (1924). The Missouri Supreme Court changed the trial court's duty in Kyger v. Koerper, 355 Mo. 772, 207 S.W.2d 46 (banc 1947). Kyger, in a concurring opinion supported by a majority of the court, held that a trial court may exercise discretion when an attorney-legislator requests a continuance pursuant to Rule 65.06. Id. 207 S.W.2d at 49. The filing of a Rule 65.06 application for continuance does not divest the trial court of jurisdiction and preclude further proceedings. Todd v. Stokes, 358 Mo. 452, 215 S.W.2d 464, 466 (1948). When an attorney-legislator is attending a session of the general assembly and he has filed a motion for a Rule 65.06 continuance, the trial court may determine whether his presence is necessary to a fair and proper trial. Kyger, 207 S.W.2d at 49; Todd, 215 S.W.2d at 466. If it is, the continuance will be granted. Conclusory statements in an affidavit that an attorney-legislator's presence is necessary for a fair and proper trial, filed to support a Rule 65.06 motion for continuance, are not sufficient; specific facts must be alleged showing need for a continuance. Kyger, 207 S.W.2d at 48.
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General American Life Ins. Co. v. Barrett, No. WD
...with specific facts showing genuine material issues results in admission of the facts alleged. Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426, 430 (Mo.App.1989). In her suggestions in opposition to the Greens' motion for summary judgment, Barrett adopted the position that no genui......
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Manor Square, Inc. v. Heartthrob of Kansas City, Inc., No. WD
...are deemed to be admitted. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243 (Mo. banc 1984); Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426, 430 (Mo.App.1989). The Page 45 materials filed in support of Manor Square's motion demonstrated that appellants did not have an evidentiary bas......
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Lardinois v. Lardinois, No. 60077
...While requests for legislative continuance have occasionally been denied in the past, see e.g. Kessinger Hunter Mgt. Co. v. Davis, 782 S.W.2d 426 (Mo.App., W.D.1989), the facts in such cases are too different to support respondent's argument in the case at bar. For example, appellant in the......
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Riley v. Riley, No. 58836
...mother argues the court had discretion to grant or deny the legislative continuance under Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426 (Mo.App.1989). She has not contested the fact father's counsel was a member of the General Assembly. While we agree the court may exercise discr......
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General American Life Ins. Co. v. Barrett, WD
...with specific facts showing genuine material issues results in admission of the facts alleged. Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426, 430 (Mo.App.1989). In her suggestions in opposition to the Greens' motion for summary judgment, Barrett adopted the position that no genui......
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Manor Square, Inc. v. Heartthrob of Kansas City, Inc., WD
...are deemed to be admitted. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243 (Mo. banc 1984); Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426, 430 (Mo.App.1989). The Page 45 materials filed in support of Manor Square's motion demonstrated that appellants did not have an evidentiary bas......
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Lardinois v. Lardinois, 60077
...While requests for legislative continuance have occasionally been denied in the past, see e.g. Kessinger Hunter Mgt. Co. v. Davis, 782 S.W.2d 426 (Mo.App., W.D.1989), the facts in such cases are too different to support respondent's argument in the case at bar. For example, appellant in the......
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Riley v. Riley, No. 58836
...mother argues the court had discretion to grant or deny the legislative continuance under Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426 (Mo.App.1989). She has not contested the fact father's counsel was a member of the General Assembly. While we agree the court may exercise discr......