Kessinger Hunter Management Co. v. Davis

• Decision Date: 26 December 1989
• Docket Number: No. WD,WD
• Citation: 782 S.W.2d 426
• Parties: KESSINGER HUNTER MANAGEMENT COMPANY, Respondent, v. William J. DAVIS, Appellant. 41226.
• Court: Missouri Court of Appeals

Page 426

782 S.W.2d 426

KESSINGER HUNTER MANAGEMENT COMPANY, Respondent, v. William J. DAVIS, Appellant.

No. WD 41226.

Missouri Court of Appeals Western District.

Dec. 26, 1989.

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 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.

Recognizing the trial court's duty to exercise discretion when Rule 65.06 motions for continuance are filed, this court considers whether the trial court's denial of Mr. Davis' request for a continuance was an abuse of discretion. The trial court's inquiry, mandated by the rule and reemphasized in Todd, was whether Mr. Panethiere's presence was necessary to a fair and proper trial or other proceedings.

Mr. Davis was represented by three attorneys during the course of this case, two soon after the suits were filed. Both attempted to withdraw later. Another attorney represented Mr. Davis after partial summary judgment was entered, and he withdrew before the trial on the damage issue. Of course, Mr. Davis had a right to representation by as many attorneys as he found necessary. Thatch, 195 S.W.2d at 108. Attorney David Christian, not a legislator, entered his appearance in the case filed in the associate division of the circuit court on behalf of Mr. Davis as early as January 6, 1986. Mr. Panethiere's appearance was entered in the Associate Circuit Division action on February 10, 1986. Pursuant to Jackson County Local Rule 3.5, Mr. Christian was considered lead counsel and filed several items in the consolidated cases. ³ The only other recorded activity by Mr. Panethiere was his "Notice of Withdrawal" filed June 2, 1986. The court entered summary judgment on the issues of contractual liability and the right to possession of the premises on May 30, 1986, and assessed damages on September 30, 1988, following a September 19, 1988, trial on the damage issue.

The trial court did not expressly overrule the request for a Rule 65.06 continuance. It did, however, proceed in a manner implicitly overruling the request. Considering the participation of Mr. Davis' other chosen counsel, Mr. Panethiere's minimal participation, and the failure to allege facts demonstrating the necessity of Mr. Panethiere's presence to fair and proper trial or other proceedings in the case during legislative session, the court did not abuse its discretion by not granting the request for a Rule 65.06 continuance.

Mr. Davis contends as his second allegation that the trial court erred in entering partial summary judgment in favor of Kessinger Hunter because it did not provide him notice of a hearing on the summary judgment motion. His second contention is not distinct. No hearing on the motion was conducted. Mr. Davis argues that because the motion for summary judgment was filed during a time when the case was required to have been "mandatorily continued," the established rules regarding notice were inapplicable. This state of "mandatory continuance," he argues, was brought about by filing a request for continuance pursuant to Rule 65.06. The previous discussion of Rule 65.06 articulates why the rule does not mandate a continuance but provides for the exercise of trial court discretion.

Kessinger Hunter filed its motion for summary judgment with supporting suggestions on March 24, 1986. Oral argument was not requested by the movant and the certificate of mailing indicates service on both of Mr. Davis' attorneys. David Christian, representing Mr. Davis, filed a response on April 1, 1986, entitled "Motion to Strike Motion for Summary Judgment or Fix Time for Response with Suggestions in Support." Mr. Christian's motion argued that defendant's previously filed Rule...