Van Buren v. Dendy
| Citation | 440 So.2d 1012 |
| Parties | George Teague VAN BUREN v. Samuel H. DENDY, Jr., a/k/a Samuel H. Dendy. 81-912. |
| Decision Date | 26 August 1983 |
| Court | Alabama Supreme Court |
D. Coleman Yarbrough and John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
Charles N. Parnell, III of Wood, Minor & Parnell, Montgomery, for appellee.
This case concerns a mortgage foreclosure. Plaintiff, George Teague Van Buren, seeks to redeem from defendant, Samuel H. Dendy, Jr., certain real property situated in Montgomery County. The property previously belonged to Chin Yong Kang. Kang mortgaged it to Exchange National Bank of Montgomery and then defaulted in the terms of the note and mortgage. At the foreclosure sale, Exchange National Bank was the successful bidder.
The bank sold the property to Dendy after sending Kang a letter requesting that he deliver possession of the property within ten (10) days. That letter was dated 13 February 1981; it was sent in compliance with § 6-5-233, Code 1975. The only evidence offered at trial regarding Kang's vacating the property established that he left on or about 22 March 1981.
Subsequently, Van Buren purchased the redemption rights of Kang and his wife, OK Ryon Kang. He then gave notice to Dendy of his intention to exercise the right of redemption. Dendy took the position that, because Kang had not vacated the property within the ten days required by statute for the preservation of the right of redemption, he, Kang, had forfeited that right.
Van Buren filed suit and then both parties filed motions for summary judgment. These were summarily denied by the trial court on 14 May 1982. Trial was set for 2 June 1982.
On 25 May 1982, Van Buren noticed the deposition of Kang in Chicago. Dendy filed a motion for a protective order, which was granted the day it was filed. Van Buren filed a motion to reconsider or to grant a continuance. That motion was denied and the parties proceeded to trial.
The case was tried, with Van Buren and Dendy as the only witnesses offering testimony. The trial court ruled in Dendy's favor, finding Van Buren was not seized of any valid or enforceable right of redemption against Dendy. Van Buren appeals to this court from the denial of this motion for new trial.
The issues presented for our review are stated by Van Buren as follows:
I.
"Whether the trial court erred in denying plaintiff's motion for summary judgment....
II.
"Whether the trial court erred in denying plaintiff an opportunity to present the testimony of the mortgagor of subject property by deposition by granting defendant's motion for protective order and denying plaintiff's motion for continuance....
III.
"Whether the trial court erred in its final judgment and order....
After careful consideration, we affirm the trial court's rulings as to these issues.
First, we consider whether the trial court was in error in refusing to grant summary judgment in favor of Van Buren.
It is well established that, in Alabama, it is only appropriate for the trial court to grant a motion for summary judgment where the non-moving party could not prevail under any set of discernible circumstances. Raley v. Royal Ins. Co. Ltd., 386 So.2d 742, 743 (Ala.1980). In this case, there were two unresolved and material issues of fact; whether the Kangs had received notice of demand for possession of the premises as required by § 6-5-233, Code 1975, and whether he vacated the These were the dispositive factual issues in this case and they were unresolved when the motions for summary judgment were considered. Thus, it would have been inappropriate for the trial court to grant either of the motions for summary judgment.
premises within the ten (10) day period provided for in that code section; and whether OK Ryon Kang was married to Chin Yong Kang prior to foreclosure. Van Buren argued that Kangs had vacated within ten (10) days of receiving the written demand. Dendy contended the premises were not timely vacated and the statutory right of redemption was thereby waived. Van Buren did not present evidence of the Kangs' marriage prior to foreclosure sufficient to resolve any factual dispute as to that issue.
Second, we consider whether the trial court erred in granting Dendy's motion for a protective order and refusing to grant a continuance. These are decisions that rest within the sound discretion of the trial court and this court will reverse only when we find a clear abuse of discretion. Carbine Constr. Co. v. Cooper, 368 So.2d 541 (Ala.1979).
It seems clear that Van Buren was aware, during the entire course of the proceedings in this action, that Kang's testimony would be critical to his case and that Kang resided in Chicago, Illinois. This was not a "newly discovered" witness. Van Buren testified that he flew to Chicago to buy Kang's right of redemption. He therefore certainly knew, long before trial, that Kang no longer resided in Montgomery. During the summary judgment proceedings Van Buren noted, "subject cause involves the right of Chin Yong Kang to redeem property sold at a foreclosure sale, and ... Mr. Kang currently resides in Chicago, Illinois."
In Mitchell v. Moore, 406 So.2d 347, 349 (Ala.1981), this court set forth guidelines for the consideration of whether the absence of a witness warrants a continuance. One of the requirements is that due diligence must have been exercised by the movant to secure the absent witness or evidence. It is clear that Van Buren did not exercise due diligence in securing Kang as a witness. Thus, under the rule exemplified by Mitchell, his absence did not provide good cause for the trial court to grant a continuance.
Regarding whether the trial court wrongfully granted Dendy's motion for a protective order, it is settled that the details of the discovery process must be left to the trial court. Stinson v. Liberty Mut. Ins. Co., 395 So.2d 1032 (Ala.Civ.App.1981). In exercising its discretion, the trial court should be guided by the spirit of the rules, which is to permit full discovery so as to save time, effort, and money and to expedite the trial and with a view of achieving justice for each litigant. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). However, the right of discovery is not unlimited, and the trial court has the power to prevent its abuse by any party. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).
Dendy's motion for a protective order states as grounds the following:
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