State ex rel. Long v. Askren, WD

• Citation: 874 S.W.2d 466
• Decision Date: 01 March 1994
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, ex rel., Robert R. LONG, et al., Valoree Maycock, Rudy Beretta, Daniel Cobb, Mike Harrison, and Larry Wims, Relators, v. The Honorable Kenton ASKREN Associate Circuit Judge Saline County Circuit Court, Respondent. 47793.
• Court: Court of Appeal of Missouri (US)

Page 466

874 S.W.2d 466

STATE of Missouri, ex rel., Robert R. LONG, et al., Valoree

Maycock, Rudy Beretta, Daniel Cobb, Mike Harrison, and Larry Wims, Relators, v. The Honorable Kenton ASKREN Associate Circuit Judge Saline

County Circuit Court, Respondent.

No. WD 47793.

Missouri Court of Appeals,

Western District.

March 1, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 1994.

James D. Worthington, Lexington, for relator Robert R. Long.

L. Clay Barton, Oak Grove, for relators Karrt Wims and Daniel Cobb.

George W. Lehnen II, Richmond, for relator Mike Harrison.

Vincent F. O'Flaherty, Kansas City, for respondent.

Before SPINDEN, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

Robert R. Long seeks this court's writ of prohibition prohibiting The Honorable Kenton G. Askren, Associate Circuit Judge, Cooper County, from compelling Mr. Long to testify and to produce records as a judgment debtor at an examination pursuant to section 513.380, RSMo 1986, and Rule 76.27. Mr. Long asserted his Fifth Amendment, U.S. Constitution, and Article I, § 19, Missouri Constitution, rights against self-incrimination. ¹ Additionally, Valoree Maycock, Rudy Beretta, Mike Harrison, Larry Wims, Daniel Cobb, and Robert R. Long, seek this court's writ of prohibition prohibiting The Honorable Kenton G. Askren from requiring their appearance and testimony as third party relators at the debtor's examination of Robert R. Long.

Three issues are presented for determination. They are whether the trial court erred: (1) in attempting to compel Robert R. Long, judgment debtor, to answer questions posed by the judgment creditor at a statutory debtor's examination pursuant to section 513.380, in violation of Mr. Long's constitutional The legal file discloses that Robert R. Long was employed by U.S. Water Company (U.S. Water) from December 20, 1983, until December 19, 1991, as vice president and manager. U.S. Water was in the business of supplying water to the residents and businesses of Lexington. As manager of the company, Mr. Long supervised the day-to-day business of the company and had depository and signature authority on one of the two bank accounts of U.S. Water at the Lafayette County Bank.

rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution and Article I, § 19 of the Missouri Constitution; (2) in compelling Robert R. Long to produce personal records by subpoena duces tecum, issued at the request of the judgment creditor, at the statutory debtor's examination and thereby exceeded jurisdiction granted by sections 513.380 and 513.390, RSMo 1986, and violated Mr. Long's right against self-incrimination pursuant to Article I, § 19 of the Missouri Constitution and the Fifth and Fourteenth Amendments of the United States Constitution; and (3) in compelling the attendance of the third party relators at the debtor's examination of Robert R. Long, and thereby exceeded jurisdiction granted by section 513.380, RSMo 1986, and Supreme Court rule 76.27. ²

U.S. Utilities Management and Services, Inc. (U.S. Utilities), is a company whose business was to pay the operating expenses and other fees incurred by U.S. Water's daily operation. As part of Mr. Long's duties as manager of U.S. Water, he had depository and signatory authority of U.S. Utilities' bank account at the Lafayette County Bank.

During the time that Mr. Long was employed by U.S. Water, he was also a shareholder, director, and President-Treasurer of Computerized Billing Service, Inc. (CBS). As Treasurer of CBS, Mr. Long maintained the company's checking account and financial records. Mr. Long's duties and responsibilities with CBS included entering or directing the entry of billing and revenue information into the computer files of U.S. Water and CBS. U.S. Water paid CBS for work performed in its behalf. In 1991, U.S. Water was owned by Charles Schleicher who also owned fifty percent of the stock in CBS. Mr. Long owned twenty-five percent of CBS's stock in 1991. CBS billed the customers of U.S. Water for products received and services rendered. U.S. Water, CBS and U.S. Utilities conducted business at the same address in Lexington.

On December 19, 1991, Mr. Long was discharged from his employment with U.S. Water. Mr. Long refused to leave U.S. Water's office and removed property and documents from U.S. Water's office over the objections of the President of the company.

Sometime in early 1992, Mr. Long filed suit against CBS, U.S. Water, and others in several counts and obtained an ex parte temporary restraining order. Although the document is not provided, apparently defendants U.S. Water, CBS, and U.S. Utilities counterclaimed. On September 17, 1992, the day trial began, Mr. Long dismissed his first amended petition which included the claim for injunctive relief.

On December 10, 1992, judgment was entered in the circuit court of Saline County in favor of defendants and against Robert R. Long on all counts of "defendant's [sic] second amended counterclaim." The trial court also found that Mr. Long's application for a temporary restraining order was an "unwarranted and unconscionable use of the legal process." The court found that while employed by U.S. Water and U.S. Utilities, and as an officer, director and shareholder of CBS, Mr. Long misappropriated funds; made fraudulent misrepresentations to his employer; wilfully, intentionally, and maliciously caused financial loss to the named defendants; and refused to return personal property belonging to the defendants. As part of the judgment awarded to U.S. Water, CBS and U.S. Utilities awarded against Mr. Long, the Circuit Court of Saline County entered judgment for actual damages in the During the pendency of that suit, extensive discovery occurred. Interrogatories and a request for production of documents were submitted to Mr. Long by defendants. Additionally, Mr. Long's deposition was taken twice. Mr. Long objected to five of the fifteen interrogatories submitted to him, and he did not object to any of the requests for production of documents. Mr. Long did not assert his Fifth and Fourteenth Amendment to the United States Constitution and Article I, § 19 of the Missouri Constitution provisions against self-incrimination to any of the questions asked in interrogatories submitted to him, as a response to the request for production of documents, or during his first deposition. During Mr. Long's second deposition which was taken on September 15, 1992, when asked whether he had married since the last deposition, Mr. Long, for the first time, declined to answer any questions propounded to him by counsel for defendants in the case then pending, asserting for the first time his rights against self-incrimination pursuant to the United States and Missouri Constitutions.

sum of $164,170.72, punitive damages in the sum of $14,775.41, plus more than $23,000 in attorney's fees. The judgment included a constructive trust of three vehicles totaling a value of more than $42,000.

On January 26, 1993, Mr. Long filed his Chapter 13 bankruptcy petition in the United States Bankruptcy Court, Western District of Missouri. The bankruptcy petition purported to detail Mr. Long's financial holdings and status as a debtor as of the date of filing. On March 15, 1993, the bankruptcy petition was dismissed by the court.

The judgment creditors obtained an order of execution on the judgment entered December 10, 1992, and unsuccessfully attempted to locate assets belonging to Mr. Long and subject to execution. Pursuant to section 513.380, RSMo 1986, the judgment creditors attempted to examine Mr. Long at a judgment debtor's examination on April 22, 1993. The judgment creditors caused Mr. Long to be served with a subpoena duces tecum which attempted to compel him to bring certain documents to the hearing for production into evidence. Mr. Long, through counsel, attempted to quash the subpoena by motion, and the motion was denied.

In anticipation of the debtor's examination hearing on April 22, 1993, the judgment creditors subpoenaed third parties Valoree Maycock; Rudy Beretta; and Larry J. Wims in his capacity as the Vice President of the Commercial Bank of Oak Grove; and Daniel Cobb, Assistant Vice President of the Bank of Odessa, to appear at the debtor's examination hearing. Each of the third parties filed motions to quash the subpoena with which each was served. The motions were denied. Mr. Long filed a motion to quash each of the subpoenas of the third parties, and his motions were denied, also.

Mr. Long was asked numerous questions at his judgment debtor's examination on April 22, 1993. Mr. Long declined to answer virtually every question asked by counsel for the judgment creditors during the examination and asserted as authority for his refusal his right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution, and Article I, § 19, Constitution of the State of Missouri, "[d]ue to the continuing investigation by the FBI and the U.S. Attorney in Kansas City." The court continued the judgment debtor examination of Mr. Long to May 14, 1993, and directed Mr. Long to appear on May 14 and to produce documents pursuant to the subpoena duces tecum served upon him by judgment creditors or to show cause why he should not be held in contempt of court.

The judgment creditors requested sanctions against Valoree Maycock, Rudy Beretta, Carl Fallman, and Mike Harrison, upon the court's finding that these witnesses failed to appear on April 22, 1993, pursuant to subpoena. The court imposed sanctions.

On May 11, 1993, Relators Robert R. Long, Valoree Maycock, Rudy Beretta, Daniel Cobb, Mike Harrison, and Larry Wims, filed their petition for writ of prohibition. On the 12th day of May, 1993, this court issued its alternative writ of prohibition enjoining Respondent from further action pursuant to his order of April 22, 1993, except to vacate and set aside said order....