TBF Financial, L.L.C. v. Stone

JOHN E. PARRISH, Judge,

dissenting.

I respectfully dissent. I agree with the principal opinion’s suggestion that the confused state of the record could hardly be overstated. However, it was the obligation of the plaintiff to make a record before the trial court that enabled that court to discern and decide the issues before it and that permits meaningful appellate review. State v. Fortner, 84 S.W.3d 507, 513 (Mo.App.2002). Plaintiff did not do so.

The principal opinion correctly states that a party who does not respond to requests for admission admits those matters; that a court must consider such admissions in deciding the case. Rule 59.01(b). However, a party must get admissions before the trial court in order for them to be considered. Absent a court order or motion placing responses (or lack of responses) in issue, they are not before the trial court for its consideration in that requests for admission or responses to such requests are not otherwise filed with the trial court. Rule 59.01(e).

In this case, as the principal opinion observes, plaintiff offered requests for admission in evidence. However, they were not admitted in evidence in that the trial court did not rule on the offer of the exhibit into evidence. Thus, plaintiffs claim in Point I that the requests were admitted in evidence is not correct.

Plaintiff had the opportunity, both when the exhibit was offered and at the time the trial court stated that no exhibit had been offered, to request a ruling on the exhibit. It did not do so. “The obligation to make a record concerning issues a party may wish to present on appeal is on that par*234ty.” State v. Fortner, supra. Complaining on appeal that an exhibit was in evidence, notwithstanding that the trial court did not rule on the tender of the exhibit in evidence and, therefore, did not admit the exhibit in evidence, is akin to requesting this court to convict the trial court of error on an issue not put before the trial court to decide. An appellate court does not convict a trial court of error on issues the trial court has not addressed. E.g., see St. Louis County v. McClune, 762 S.W.2d 91, 92 (Mo.App.1988). Plaintiff, having not sought a ruling on its tender of the requests for admission in evidence, is not entitled to have Point I, the point on appeal that asserts the requests for admission were admitted in evidence, granted. Point I should be denied.

There are three remaining points on appeal the principal opinion does -not address. I would deny those points as well. The second point is directed to an admonition by the trial court regarding a shortcoming in the prayer of plaintiffs petition. I do not perceive from the record that the admonition about which Point II complains was the basis for the trial court’s determination of the case. It did not affect the result of the case; therefore, the issue to which Point II is directed is of no consequence. M.F.M. v. J.O.M., 889 S.W.2d 944, 954 (Mo.App.1995); see also Springfield Land and Development Co. v. Bass, 48 S.W.3d 620, 631 (Mo.App.2001). I would deny Point II.

Point III is directed to the trial court’s understanding that Johnnie Stone III was not the intended defendant and, therefore, not a party to the case, although an attorney entered an appearance on his behalf. Point III complains that the trial court erred, under those circumstances, in not entering judgment against Johnnie Stone III. I do not find merit in Point III because Johnnie Stone III timely objected to the proceeding for the reason he was not the person sued. See P & K Heating & Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 126 (Mo.App.1994).

Plaintiffs final point, Point IV, complains that the trial court erred in failing to grant the request for continuance made the morning of trial. The granting or denying of continuances rests in the sound discretion of the trial court. See Nichols v. Preferred Risk Group, 44 S.W.3d 886, 896 (Mo.App.2001); Bydalek v. Brines, 29 S.W.3d 848, 855 (Mo.App.2000). Considering the record in this case, including that the motion for continuance was not filed until the day of trial and that the motion included the statement that plaintiffs attorney had a conflict that date “which cannot be rescheduled” although the attorney was present, the trial court, in my opinion, did not abuse its discretion in denying the requested continuance. I would deny Point IV and would affirm the judgment.