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Burleson v. Fleming8/7/2001
This is an appeal of an order setting aside a judgment under Rule 74.06(b) in an equitable garnishment action. The appellants in this case are Talitha Burleson, Melissa Shaw, Camille Shaw, Marcella Berymon, and Damon Williams (hereafter sometimes collectively referred to as "Plaintiffs" or as "Judgment Creditors"). The Plaintiffs initially obtained judgment in their favor in a personal injury action against a party driving a vehicle leased from, and apparently insured by, Enterprise Leasing Company of Kansas. The Plaintiffs thereafter obtained judgment against Defendant Enterprise in an equitable garnishment action after the trial court struck the pleadings of Enterprise as a sanction for failure to cooperate with discovery orders. On August 9, 2000, the court set aside the judgment of May 22, 2000, on the basis of excusable neglect, under Rule 74.06(b). The Plaintiffs/Judgment Creditors argue on appeal that the trial court erred in setting aside the judgment because the neglect was not excusable. We agree and reverse the ruling of the trial court.
Factual Background
In July of 1996, the Plaintiffs were involved in an automobile collision in which each was injured. The Plaintiffs occupied a car driven by James Fleming. The car driven by Fleming was leased to Fleming by Enterprise, which apparently also provided liability insurance to Fleming. Plaintiffs filed a personal injury suit against Fleming in July 1999, and obtained judgments in their favor in the following amounts: 1)Talitha Burleson: $300,000.00; 2) Melissa Shaw: $75,000.00; 3) Damon Williams: $50,000.00; 4) Camille Shaw: $10,000.00; 5) Marcella Berrymon: $10,000.00. After the judgment became final, the Plaintiffs, as judgment creditors, filed the instant equitable garnishment action against James Fleming and Enterprise Leasing .
The Judgment Creditors' petition for equitable garnishment, together with an opening set of interrogatories and first request for production of documents, were served upon Enterprise on October 22, 1999. Enterprise filed its answer on November 22, 1999. The attorney for the Judgment Creditors requested dates so he could take the corporate representative's deposition. The Judgment Creditors' attorney then received a call from Enterprise's counsel requesting an extension of time until December 10, 1999, to respond to discovery. Enterprise's counsel stated he would provide dates for the corporate representative's deposition. The Judgment Creditors' attorney memorialized this discussion in a letter.
On December 10, the attorney for the Judgment Creditors received a letter from Enterprise requesting an additional week and suggesting January 13 or 14, 2000, for the deposition date. On December 21, 1999, the parties set the deposition for January 14, 2000. This date did not work out and the parties agreed on February 11, 2000. Enterprise requested that the February 11 date be rescheduled to February 24, 2000, so it could respond to the document request. The Judgment Creditors agreed but stressed the need for responses to all outstanding discovery. Counsel memorialized the conversation in a letter and sent an amended deposition notice. On February 22, 2000, Enterprise's attorney faxed a letter to the Judgment Creditors stating he had been out of the office due to illness and was compiling the requested documents. The attorney requested the deposition set for the 24th be moved to March. The parties agreed to move the depositions to March 9, 2000, provided the discovery was produced by March 2, 2000. A second amended notice to take deposition was sent.
Enterprise failed to produce any discovery. On March 9, 2000, Enterprise's counsel called and stated he would produce re
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