Sean Tate v. Troy Dierks ( 2020 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
SEAN TATE, )
)
Appellant, )
)
v. ) WD82725
)
TROY DIERKS, ) Opinion filed: September 22, 2020
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE S. MARGENE BURNETT, JUDGE
Division Two: Karen King Mitchell, Presiding Judge,
Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge
Sean Tate (“Tate”) appeals from the Judgment of the Circuit Court of Jackson
County following a jury trial in a wrongful death action in favor of Troy Dierks
(“Dierks”) and against Tate. On appeal, Tate claims the trial court erred in denying
his motion for new trial for reason that the court abused its discretion in excluding
the testimony of witness Jeffrey Frazier (“Frazier”). We affirm, finding that the trial
court acted within its discretion in excluding Frazier’s testimony.
Factual and Procedural History
The material facts are not in dispute. This case arises out of a fatal crash
involving a tractor-trailer driven by decedent Alan Tate (“Decedent”), Tate’s father.
Decedent was employed by Whimsy, Inc. (“Whimsy”), a Chicago-based trucking
company with a terminal in Kansas City, Missouri. On March 24, 2016, Decedent
departed from Sedalia, Missouri, driving his tractor-trailer along Highway 50 en
route to Kansas City, Missouri. Decedent lost control of his truck in Lee’s Summit
and crashed into a concrete bridge pylon. Decedent was pronounced dead at the scene
of the crash.
Two claims were filed as a result of this accident.1 First, Tate, Decedent’s only
surviving child, filed a workers’ compensation claim against Whimsy in 2016. During
the pendency of the workers compensation claim, Tate’s counsel deposed John
Wardlow (“Wardlow”), a Whimsy driver and former co-employee of Decedent. That
deposition revealed the identity of Frazier, who was employed by another trucking
company. Wardlow testified that Frazier had contacted him two to three weeks prior
to the fatal crash, stating that he had observed the front right wheel of Whimsy truck
#2610 – the truck which Decedent operated on the day of the crash – “wobbling.”
Wardlow further testified that he spoke to Whimsy’s lead mechanic, Dierks, about
the wobbly wheel.
After learning about the alleged problem with Whimsy truck #2610, on July
31, 2017, Tate filed a wrongful death lawsuit against Dierks which is the subject of
this appeal. The petition referenced Frazier and his observations of the wobbly wheel.
Discovery ensued in the wrongful death case, during which Tate did not identify
Frazier as a witness in answer to interrogatories. On April 18, 2018, the trial court
1
Relevant to our analysis, counsel representing Whimsy in the worker’s compensation case also represented
Dierks in the wrongful death lawsuit.
2
set a trial date of January 28, 2019, and entered its scheduling order setting deadlines
for the remainder of the case. Pursuant to the trial court’s scheduling order, witness
lists were to be filed on or before January 8, 2019. Tate filed his witness list on
January 8, 2019. Tate did not name Frazier on his witness list.
Also on January 8, 2019, Dierks filed his first motion in limine and suggestions
in support of same. Dierks specifically requested therein that “[p]laintiff should be
precluded from calling any witnesses not previously disclosed in [p]laintiff’s discovery
responses,” specifically citing Tate’s responses to Interrogatories No. 2 and 12. Tate
agreed to the motion in limine and, pursuant to a stipulation of the parties, the
motion in limine was sustained by the trial court.
On January 23, 2019, less than five days before trial, Tate notified Dierks that
Frazier had been served with a subpoena to appear at trial, and indicated his
intention to call Frazier as a witness. The next day, Dierks filed a motion to exclude
testimony of undisclosed witness Frazier. On January 28, 2019, the day of the jury
trial, the trial court held a hearing prior to jury selection and ruled that Frazier would
not be allowed to testify because he had not been identified in the interrogatory
answers or on the witness list. Tate requested that he be allowed to make an offer of
proof of the testimony of Frazier, which the court heard prior to commencing trial. At
the conclusion of the trial, the jury found in favor of Dierks. Tate filed a timely motion
for new trial which included the point appealed herein, and such motion was denied
by the trial court.
3
Tate now appeals. Further factual details will be outlined as relevant in the
analysis below.
Standard of Review
“Trial courts have broad discretion in administering rules of discovery, which
this Court will not disturb absent an abuse of discretion.” State ex rel. Delmar
Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. banc 2007). More
specifically, “[t]he trial court has broad discretion in admitting or excluding testimony
on the basis of nondisclosure in interrogatories.” DeLaporte v. Robey Bldg. Supply,
Inc., 812 S.W.2d 526, 533 (Mo. App. E.D. 1991). Reversal of a discretionary ruling is
warranted only when the lower court ruling is “clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful consideration.” State ex rel. Webster
v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988). “[I]f reasonable men
can differ about the propriety of the action taken by the trial court, then it cannot be
said that the trial court abused its discretion.” Id. Discretionary rulings are
presumed correct and the appellant has the burden of proving that there has been
error. Id.
Analysis
In his sole point on appeal, Tate argues that Frazier should have been
permitted to testify at trial. Tate argues that, although Frazier was not disclosed on
the pre-trial witness list as required by the trial court, his identity and the nature of
his testimony were effectively provided by his petition and interrogatory answers.
4
Tate argues alternatively that if the interrogatory answers did not adequately
identify Frazier as a witness, opposing counsel’s knowledge of Frazier’s identity and
his expected testimony demonstrates the absence of prejudice toward Dierks. We are
not persuaded.
Missouri law has established that the trial court has broad discretion to
exclude testimony of witnesses not properly disclosed in interrogatory responses:
The trial court is vested with broad discretion to admit or reject
testimony of a previously undisclosed witness whose identity may have
been requested by interrogatory, and this court reviews only for abuse
of that discretion .... ‘The primary purpose of interrogatories is to aid the
litigants to find out prior to the trial what the facts are, so that
controversial issues can be ascertained and the preparation for trial and
the trial limited to them all to the end of obtaining substantial justice
between the party’s litigant ....’
Trident Grp, LLC v. Miss. Valley Roofing, 279 S.W.3d 192, 201 (Mo. App. E.D.
2009) (quoting Johnson v. National Super Markets, Inc., 710 S.W.2d 455, 456
(Mo. App. E.D. 1986)).
First, Tate argues that by referencing Frazier in his petition, he effectively
provided Frazier as a witness because he gave Frazier’s name and the nature of his
testimony. Regarding Frazier, Tate’s petition reads as follows:
9. Dierks was told by a truck driver employed by Whimsy
Trucking named John Wardlow, that he, John Wardlow, had received
firsthand information from a man named Jeff Frazier that indicated
that Frazier had seen the front wheels of [Decedent’s] truck . . .
wobbling.
Tate’s assertion that Frazier and his testimony was effectively provided in the
petition is misguided. Supreme Court Rule 55.05 provides that “[an] … original claim
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… shall contain (1) a short and plain statement of the facts….”2 A petition’s ‘short
and plain statement of the facts’ is no substitute for the rigors of the discovery
process. Rather, the varied discovery tools available to counsel in the discovery
toolbox are designed to illuminate the salient facts associated with a case. A party’s
understanding of the facts, and of relevant witnesses and exhibits, will develop and
mature as investigation and discovery occur following the petition’s filing. At its most
simplistic, opposing counsel cannot know from the petition’s short and plain
statement whether the person named even has the capacity to testify. Given that
Frazier was never identified in Tate’s discovery responses, Dierks would be entitled
to presume that, whatever Tate’s belief at the time the petition was filed, he had
concluded (for any number of possible reasons) that Frazier was not a competent,
available, or helpful witness.
Further, a petition merely commences a case. The petition’s paragraph nine,
regarding Frazier, is simply an allegation of fact, not a fact itself. As we discuss next,
when a witness is not disclosed after being requested by interrogatory, an allegation
in a petition is simply insufficient to make the leap from petition to the witness stand
for a person named in such petition.
Tate next argues that he has ‘effectively provided’ Frazier’s name in his
interrogatory answers. “The purpose of pretrial discovery includes facilitating and
expediting the preparation of cases for trial, guarding against surprise and
concealment, reducing delay, and assisting in determining the truth.” Marmaduke
2
All references to Rules are to Missouri Rules of Civil Procedure (2020), unless otherwise indicated.
6
v. CBL & Assocs. Mgmt., 521 S.W.3d 257, 270-71 (Mo. App. E.D. 2017). “If the rules
of discovery are to be effective, …, appropriate sanctions must be imposed on those
who disobey the rules.” Id. at 271.
Dierks propounded interrogatories number 2 and 12 seeking to elicit those
persons with knowledge about the case. These interrogatories and the answers
thereto are as follows:
Interrogatory 2. Identify by name, telephone number, and address
each person who you believe has knowledge or information about the
claims you have asserted against Defendant in this lawsuit, about any
of the injuries or damages you may claim in this lawsuit, or about the
factual allegations contained in your pleadings. For each individual
identified, please briefly state the nature of the information you believe
the person possesses.
ANSWER: [Objections omitted. 3] Without waiving said objection,
plaintiff is aware of the witnesses listed in the police report (which
defendant has), with address and phone numbers, defendant, and John
Wardlow (who defendant has deposed) and defendant’s manager Larry
King. In addition, Mary Tate, above. In addition, there will be expert
witnesses designated.
Interrogatory 12. Please state all facts and identify all witnesses and
documents that you believe support the claims of negligence or wrongful
conduct on the part of Defendant that are described in Paragraphs 9
through 11 of your Petition, as well as any other acts or omissions by
Defendant that you believe caused or contributed to the cause of
decedent’s death.
ANSWER: Defendant Dierks and witnesses Wardlow and King’ [sic]
depositions in the workers compensation case, which defendant’s
3
Tate’s interrogatory answers provided to opposing counsel on March 15, 2018, were in response to Dierks’
interrogatories dated December 14, 2017. No request for an extension was requested by
Tate, and none was granted. Thus, Tate’s answers were in violation of Rule 57.01(c)(1), which requires answers be
provided within 30 days after service of the interrogatories and the objections would not have been well taken by the
Court.
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attorneys have possession of [sic]. Other discovery is ongoing, so
additional information will be supplemented by an appropriate expert
witness, who will inspect the truck.
Tate did not disclose Frazier in Interrogatory 2. First, Tate references
witnesses named in the police report. In his petition, Tate has alleged Frazier
observed the wobbly wheel weeks prior to the accident. Therefore, Frazier would not
be a witness listed on the police report created on the day of the fatal accident.
Neither is Frazier identified by proper name, as Tate did with other witnesses
(Wardlow, King, and Mary Tate). It is also clear that Frazier is not an expert witness,
and thus is not named by Tate’s collective reference to expert witnesses.
It is equally clear that Tate did not disclose Frazier in Interrogatory 12. Tate
argues that there was an obvious mistake in this answer in that the preposition ‘in’
should have been inserted after the word ‘witnesses’ so that the answer would read
‘witnesses in Wardlow and King depositions.’” He reasons that in the face of his
typographical error, “witnesses Wardlow and King’ depositions” properly disclosed
Frazier because not only did opposing counsel understand the meaning of the answer,
but also that the only “witness named” in the Wardlow deposition was Frazier. These
arguments fail.4
First, Tate’s argument requires Dierks to presume there was a word missing
when there was no reason for Dierks to do so. Second, if Dierks made such a
speculative presumption, then Dierks would be required to correctly guess not only
4
Notably, Tate admits in his brief that his interrogatory answer was “incomplete” and “should have been
answered by naming Jeff Frazier.”
8
what word was missing, but where in the sentence the missing word should be
inserted. Clearly, Tate’s omission changed the meaning of his answer on its face. By
omitting the preposition “in”, the word “witnesses” modified the names it immediately
followed: Wardlow and King. Dierks simply had no reason to speculate that a word
was missing from this particular answer.
Next, Tate argues that Dierks understood his answer to Interrogatory 12,
despite the error. Not only is this speculative, at best, but the trial record
demonstrates that Dierks did not understand Tate’s intended answer. At the hearing
on Dierks’ motion to exclude Frazier, counsel for Dierks stated: “[I]t wasn’t witnesses
identified in Wardlow and King’s depositions, as he put in his [motion to exclude]
response. It was witnesses Wardlow and King. He identified those witnesses, not
witnesses in those depositions.” Hence, there was no clear understanding by Dierks
of what was meant by Tate in his answer to Interrogatory 12. Opposing counsel
cannot be tasked with reading words into discovery responses where they do not exist.
Further, Tate argues that Dierks must have known of Frazier’s existence
because witnesses in the Wardlow deposition were limited to Frazier. This is a
second-step argument, in that for us to consider it we must first find that Dierks had
a duty to know of the missing word in Interrogatory 12, “in”, which we do not, and
neither did the trial court find such a duty.
Finally, Tate argues that although he did not specifically identify Frazier as a
witness in his answer, Dierks did not seek clarification regarding Tate’s answer to
Interrogatory No. 12. This is simply not relevant; Dierks had no duty to seek
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clarification. We echo the words of the trial court: “[T]hey don’t have to [seek
clarification]. That’s not their obligation. It’s your obligation.” Indeed, Rule 56.01(e)
imposes a duty to seasonably supplement prior discovery responses. It was Tate who
had the duty to supplement his answers, not Dierks’s duty to seek clarification.
Moreover, the trial court also found that Tate failed to disclose Frazier as a
witness in accordance with its scheduling order. At paragraph 10, the court’s order
required:
The parties shall file witness/exhibit lists on or before 10 days before
Pre-trial.5 The witness/exhibit lists shall include all person and exhibits
then known and reasonably expected to be offered at trial and said list
shall include detail as to make the witnesses and exhibits reasonably
identifiable, including the addresses and phone numbers of all
witnesses.
While Tate timely filed his witness list on January 8, 2019, it failed to identify
Frazier. In violation of the court’s order, Tate sought to disclose Frazier as a witness
five days prior to trial, and more than two weeks after witness lists were to be filed
with the court. Rule 62.01 provides that once entered, the court’s scheduling order
controls the subsequent course of the action. Setting a deadline for the specific
disclosure of witnesses to be called at trial is a proper use of a scheduling order.
Tate argues that he did not disclose Frazier in a timely manner pursuant to
the scheduling order’s deadline because at the time of filing his witness list, Tate did
not know Frazier’s whereabouts or contact information. Tate “did not believe it was
appropriate to list a trial witness whose whereabouts was unknown and who would
5
There is no argument that ‘ten days before Pre-trial’ was January 8, 2019.
10
consequently not be called at trial.”6 We find this argument disingenuous. At a
minimum, Tate could have disclosed Frazier in a timely manner by providing the
information known at that time – namely, Frazier’s name and the fact that his
whereabouts were being investigated.7 Instead, despite the apparent importance of
Frazier’s testimony and knowing that he wanted to call Frazier, Tate demonstrated
no compliance with the trial court’s scheduling order and remained silent on his
intentions.
Not only was Frazier not identified in Tate’s interrogatory answers and the
witness list, Tate stipulated to the exclusion of any undisclosed witnesses, including
Frazier. Dierks filed his first motion in limine on January 8, 2019 – the same day
Tate’s witness list was filed with the court – seeking to preclude any undisclosed
witnesses from testifying. Tate argues that this demonstrates Dierks’ knowledge of
Frazier and his testimony.8 To the contrary, the motion in limine sought to exclude
any undisclosed witness or hearsay statements. Further, while Dierks had
knowledge of the petition’s allegation regarding Frazier, any mention of Frazier in
the motion in limine demonstrates Dierks’ concern with how such allegation might
be proven by Tate given that Frazier himself would not be testifying since he was not
6
This argument is contrary to Tate’s repeated assertion that the existence of Frazier and his testimony were
known by both parties for nearly two years prior to trial. Further, the inability to locate witnesses just days before
trial is yet another appropriate reason a trial court might require the parties to identify their witnesses at some
reasonable time prior to the trial.
7
In the words of the trial court, “[E]ven if you only had a name, that person should have been identified in
some fashion. In an answer to an interrogatory or a witness list.” Trial Tr., 15, Jan. 28, 2019.
8
Tate relies partially on the fact that Dierks trial counsel represented Whimsy in the worker’s compensation
case, and thus heard Wardlow’s deposition in which Wardlow identified Frazier and what Frazier saw. This, however,
provided Dierks with no more information than the allegation made in the petition, and neither did it provide Dierks
with Frazier’s capacity to testify or other vital information necessary to prepare for trial. Further, it does not justify
the failure to name Frazier in interrogatory answers or the witness list.
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listed in the interrogatory answer or the witness list. Moreover, if Tate was, in fact,
investigating Frazier’s whereabouts in order to enable his disclosure as a witness, it
is illogical that Tate would have stipulated to such a request.
Tate’s final argument is that even though Dierks stipulated to the motion in
limine excluding non-disclosed witnesses, and even though Frazier was not disclosed
as a witness in the interrogatory answers or included on the witness list, Dierks
suffered no prejudice because he knew of Frazier’s identity and the likely contents of
his testimony. Further, Tate claims Dierks was not prejudiced because Dierks had
the opportunity to interview or depose Tate in the five days before trial. We cannot
agree.
Prior to imposing sanctions upon the errant party “[the] trial court first will
determine whether in the particular situation the opposing party has been
prejudiced.” Laws v. Wellston, 435 S.W.2d 370, 375 (Mo. 1968). “In making a
determination as to prejudice to the adversary the trial court should not ignore the
spirit of the rule; i.e. that the rules of discovery were designed to eliminate, as far as
possible, concealment and surprise ....” Crompton v. Curtis-Toledo, Inc., 661 S.W.2d
645, 650 (Mo. App. E.D. 1983).
Rule 61.01(b) grants trial courts the power to take “just” action in regard to a
party’s failure to answer interrogatories. “Whether a party is prejudiced by evasive
answers to interrogatories so that exclusion of testimony is proper is a matter left to
the discretion of the trial court.” McClure v. McIntosh, 770 S.W.2d 406, 410 (Mo. App.
12
E.D. 1989) (citing Missouri Highway and Transportation Commission v. Pully, 737
S.W.2d 241, 245-46 (Mo. App. W.D. 1987)).
Here, it is clear Dierks was entitled to rely on Tate’s answers to interrogatories
in determining how to prepare his defense. Further, Dierks was entitled to rely on the
witness list filed by Tate. Without being named in discovery or on the witness list,
Dierks may reasonably rely on Frazier’s apparent absence and prepare for trial
accordingly. Further, the fact that Dierks was allowed to interview Frazier a few
days prior to trial is insignificant in that it does not make up for the inability to
prepare for Frazier’s testimony in the years leading up to trial and leaves Dierks in
an unenviable trial position.
A trial court has broad discretion in choosing a remedy for a party’s failure to
disclose a witness during discovery. Fairbanks v. Weitzman, 13 S.W.3d 313, 327 (Mo.
App. E.D. 2000). “Exclusion of testimony is an available sanction where a party has
failed to identify a witness in response to interrogatories.” Moore v. Weeks, 85 S.W.3d
709, 722 (Mo. App. W.D. 2002) (citing Garrison v. Garrison, 640 S.W.2d 179, 180 (Mo.
App. E.D. 1982)). Under these circumstances, it was well within the trial court’s
discretion to exclude the proffered testimony as a sanction for failing to identify
Frazier as a witness in response to interrogatories as well as the court’s scheduling
order. Had the trial court ruled otherwise and allowed Frazier to testify, Dierks
clearly would have been prejudiced. We find that the trial court did not abuse its
discretion in excluding such testimony.
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Conclusion
The judgment of the trial court is affirmed.
________________________________________
W. DOUGLAS THOMSON, JUDGE
All concur.
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