State ex rel. Long v. Askren

874 S.W.2d 466, 1994 Mo. App. LEXIS 326, 1994 WL 57284
CourtMissouri Court of Appeals
DecidedMarch 1, 1994
DocketNo. WD 47793
StatusPublished
Cited by7 cases

This text of 874 S.W.2d 466 (State ex rel. Long v. Askren) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Long v. Askren, 874 S.W.2d 466, 1994 Mo. App. LEXIS 326, 1994 WL 57284 (Mo. Ct. App. 1994).

Opinions

ULRICH, Judge.

Robert R. Long seeks tMs court’s writ of proMbition proMbiting 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 Ms Fifth Amendment, U.S. Constitution, and Article I, § 19, Missouri Constitution, rights against self-incrimination.1 Additionally, Valoree Maycoek, Rudy Beretta, Mike Harrison, Larry Wims, Darnel Cobb, and Robert R. Long, seek tMs court’s writ of proMbition prohibiting The Honorable Kenton G. Askren from requiring their appearance and testimony as third party rela-tors 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 debt- or’s examination pursuant to section 513.380, in violation of Mr. Long’s constitutional [469]*469rights 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 1, § 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

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-today 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.

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 [470]*470sum of $164,170.72, punitive damages in the sum of $14,776.41, 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.

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.

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 May-cock; Rudy Beretta; and Larry J.

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Bluebook (online)
874 S.W.2d 466, 1994 Mo. App. LEXIS 326, 1994 WL 57284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-long-v-askren-moctapp-1994.