State ex rel. Bunker Resource Recycling & Reclamation, Inc. v. Howald
| Decision Date | 15 February 1989 |
| Docket Number | No. 15766,15766 |
| Citation | 767 S.W.2d 76 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, ex rel. BUNKER RESOURCE RECYCLING & RECLAMATION, INC., Relator, v. Honorable J. Kent HOWALD, Respondent. |
Richard C. Witzel, John H. Herman, Witzel & Kearns, St. Louis, for respondent.
John E. Price, John A. Cowherd, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for relator.
By its petition in prohibition, the corporate defendant in the underlying action seeks to prevent the plaintiffs from taking the deposition of a witness as the "managing agent" of the defendant. This court issued its preliminary order. Rule 97.04. The following is an outline of the procedural background of the proceeding.
The plaintiffs in the underlying action are four residents of the Bunker, Missouri, area and Simonds Manufacturing Corporation, a Florida Corporation (Simonds). The petition is in three counts. By the first two counts, the individual plaintiffs prayed for an order restraining relator Bunker Resource Recycling & Reclamation, Inc. (Bunker) from accepting, treating, processing, handling or storing infectious waste at its incinerator facility near Bunker and attorney's fees and costs. Count I predicated that relief upon the basis Bunker did not have the required permit for handling such waste at that facility and its actions in doing so were in violation of the Missouri Hazardous Waste Management Law. Count II sought the same relief upon the basis of nuisance. Count I was severed and the individual plaintiffs granted injunctive relief. See Mertzlufft v. Bunker Resources Recycling, 760 S.W.2d 592 (Mo.App.1988).
By Count III Simonds incorporates certain allegations of Count I and Count II. The prayer is for a similar order and attorney fees. Count III also alleges that Simonds manufactured the incinerator at that facility and that Bunker was not operating that facility in accordance with procedures and specifications prescribed by Simonds. Simonds further alleges that for reasons stated, Bunker's operation of the facility will result in damage to Simonds. The underlying action is pending upon Counts II and III. It also appears Bunker has filed a counterclaim.
On May 26, 1988, Simonds served a notice upon relator to take the deposition of "Raymond Adams, Managing Agent, Bunker Resources, Recycling & Reclamation, Inc." The notice specified the deposition was to be taken in the office of Simonds' lawyer in St. Louis. Adams is a resident of Ontario, Canada. Bunker filed a motion to quash that notice. A hearing was held upon that motion. However, the motion was never ruled upon.
Thereafter, Simonds served a similar notice upon Bunker to take the deposition of Adams at a later date. Again, Bunker filed a motion to quash the notice. That motion alleged that Raymond Adams was not the managing agent of Bunker. The parties stipulated that, subject to objections made at the prior hearing, the motion could be determined upon the basis of exhibits submitted at that hearing. Those exhibits are the record before this court. Bunker submitted the affidavits of its vice president and the affidavit of the president of Decom Medical Waste Systems, Inc. (Decom), an affiliated corporation. Essentially those affidavits state that Raymond Adams has acted as a technical consultant to Bunker, but was not and never had been an employee of Bunker and was not and never had been its managing agent. In response the plaintiffs filed fourteen documents. They include Exhibits H, I, J, P and Q which are on a letterhead of Decom and purport to be signed by Ray Adams, President; Exhibits O and S, letters from one of Bunker's lawyers to the Missouri Department of Natural Resources (DNR); Exhibit K, Bunker's Revised Engineering and Response Statement filed with DNR; and Exhibit R, the deposition of a newspaper reporter relating an interview he had with Ray Adams. The content of the exhibits submitted by the plaintiffs will be hereafter noted. Bunker's basic position is that the circuit court abused its discretion because there was no competent evidence that Raymond Adams was the managing agent of Bunker.
In this proceeding the parties have made some assumptions which have narrowed the issue to be decided. Those assumptions are as follows. That by virtue of Rules 57.03(a) and (b)(1) and 57.07(a)(2), a party may notice the deposition of a corporate party by a particular officer, director or managing agent as an alternative to naming a corporate deponent and describing the matters on which the examination is requested. See Rule 57.03(b)(4); United States v. One Parcel of Real Estate at 5860 North Bay Road, Miami Beach, Florida, 121 F.R.D. 439 (S.D.Fla.1988); GTE Products Corp. v. Gee, 115 F.R.D. 67 (D.Mass.1987); Hi-Plains Elevator Machinery, Inc. v. Missouri Cereal Processors, Inc., 571 S.W.2d 273 (Mo.App.1978). That the notice given was in proper form to notice the deposition of a corporate party. See United Services of America, Inc. v. Empire Bank, 726 S.W.2d 439 (Mo.App.1987); Hi-Plains Elevator Machinery, Inc. v. Missouri Cereal Processors, Inc., supra; Weldon, Williams & Lick, Inc. v. L.B. Poultry Co., 537 S.W.2d 868 (Mo.App.1976). That in the absence of any definition of the term "managing agent" as used in Rule 57 by statute, rule or controlling decision of this state, it is appropriate to use as a guide federal decisions construing the virtually identical Federal Rules of Civil Procedure. See Federal Rule of Civil Procedure 30; Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976); State ex rel Kincannon v. Schoenlaub, 521 S.W.2d 391 (Mo. banc 1975).
Without deciding the same to be true, this court will resolve this proceeding upon the basis of those assumptions. That being so, the issue to be decided is the issue tendered by the parties; i.e., whether or not there was before the circuit court substantial admissible evidence that Raymond Adams was the managing agent of relator.
As stated, Bunker contends there was no admissible evidence to support a determination that Adams was a managing agent of Bunker. It concludes the competent evidence establishes only the following facts:
a. Raymond Adams' wife owns the controlling interest in the parent corporation of Relator. (Ex. K).
b. Raymond Adams owns stock in a Canadian corporation which leases the incinerator equipment to Relator. (Ex. K, Attachment 1).
c. Raymond Adams and the Canadian corporation, Decom Medical Waste Systems, Inc., have provided financial responsibility assurances on behalf of Relator to the Department of Natural Resources (Ex. O), and
d. Raymond Adams has served as an outside technical consultant concerning the construction and start-up of the incinerator at Bunker. (Ex. E, S).
It bases that conclusion upon the proposition that except for Exhibits K, L, O and S the evidentiary material submitted by the plaintiffs could not be properly considered.
For example, Bunker contends Exhibits H and I, purporting to be letters written by Adams, were not authenticated as letters actually written by Adams. In making this contention, Bunker overlooks the content of Exhibit K, the Revised Engineering and Response Statement it filed with DNR. Exhibit K includes the following:
The August 26, 1987 letter from Mr. R.A. Adams to Mr. William Ford [Exhibit I] referenced on page 2 of the Department's December 22, 1987 letter was intended to refer to ownership of the stock of Bunker Resource Recycling and Reclamation, Inc. The September 4, 1987 letter from Mr. R. Adams to Mr. Jim Hull [Exhibit H] and the October 2, 1987 letter from Ms. Treva J. Hearne to the Department which referred to ownership of Bunker Resource Recycling and Reclamation, Inc. by Decom Medical Waste Systems, Inc. were intended to refer to the incinerator equipment.
Bunker established the authenticity of Exhibits H and I.
Bunker also makes a similar argument that a purported letter of Adams to Mr. J. Turner attached to Exhibit M has not been authenticated. In making that argument, Bunker overlooks the following legal precept.
The law is that the mere fact that a letter purports to have been written and signed by one with authority to do so is of itself insufficient to establish the authenticity and genuineness of the letter; however, there is a well recognized exception to that rule, which is that letters received in reply to other letters proved to have been sent to the party are admissible.
Crawford v. Metropolitan Life Ins. Co., 167 S.W.2d 915, 923 (Mo.App.1943). Exhibit M establishes that said letter was received by J. Turner in response to a letter he wrote to Ray Adams.
Bunker only indirectly questions the identification of the individual who made statements concerning the operation of Bunker to the newspaper reporter whose deposition and articles constitute Exhibit R. "Where one is called by telephone with his number and answers, admitting himself to be the person called, testimony of the caller relating the conversation ensuing is held admissible." State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462, 464 (banc 1930). Under this rule, the deposition establishes the statements were made by Raymond Adams.
In addition to questioning the authenticity of statements attributed to Adams Bunker argues, That general rule is subject to qualification. "The holding in the Mechanics' Bank case [182 S.W. 989 (Mo. banc 1916) ] in substance was that an agency cannot be proven by the mere declarations of the alleged agent without some independent corroborating evidence." State ex rel....
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