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State ex rel. Collom v. Fulton

Court of Appeals of Missouri, Southern District, Second Division

June 9, 2017

STATE OF MISSOURI EX REL. GLENN COLLOM and ELLIE COLLOM, Relators,
v.
THE HONORABLE ROB E. FULTON, Respondent.

          ORIGINAL PROCEEDING IN PROHIBITION

          GARY W. LYNCH, P.J.

         Devin Kirby, Angela M. Kirby, Derrick Kirby, and Angela R. Kirby ("the Kirbys") alleged that they owned certain property ("Property") in the Pike Creek Estates and petitioned the trial court for the ejectment of Glenn Collom and Ellie Collom ("the Colloms") from Property because the Colloms had constructed a metal fence thereon. After the trial court ordered the Colloms to produce certain documents, they petitioned this court for a writ of prohibition, "directing [the trial court] to refrain from enforcing its [] Order Compelling Discovery[, ]" because they claim the documents are protected by several privileges and the work product doctrine and are irrelevant. We issued a preliminary writ of prohibition on January 30, 2017. Because we cannot conclude that the trial court abused its discretion in compelling this discovery, the preliminary writ is quashed.

         Standard of Review

A writ of prohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party. Prohibition is the proper remedy when a trial court has abused its discretion in a discovery order to the extent that its act exceeds its [authority]. A trial court abuses its discretion when its 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. Wilson v. Davis, 979 S.W.2d 253, 255 (Mo.App. 1998) (internal citations and quotations omitted).

         Factual and Procedural Background

         The underlying claim for ejectment stems from an erroneous survey of the Property by Chris Lambert for the Colloms.[1] The Colloms responded to certain discovery requests from the Kirbys by generally asserting as to all requested documents the attorney-client, the insurer-insured, and the work product privileges and lack of relevance. The contested discovery requests, with the Colloms' responses noted in corresponding footnotes, are as follows:

         Request No. 1[2]

All letters, emails and other written correspondence from [Colloms] and/or [Colloms'] counsel to Chris Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding a survey on Lot 1 of Pike Creeks Estates conducted by Chris Lambert (d/b/a Lambert Engineering/Surveying) for Glenn Collom and/or Ellen Collom in Carter County, Missouri.
Request No. 2:
All letters, emails and other written correspondence from [Colloms] and/or [Colloms'] counsel to Chris Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding a lawsuit captioned Kirby v. Collom pending in the Circuit Court of Butler County, Missouri, case number 14BT-CV01572 and/or 14BT-CV01572-01.
Request No. 3:
All letters, emails and other written correspondence from [Colloms] and/or [Colloms'] counsel to Chris Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding a lawsuit captioned Kirby v. Collom pending in the Circuit Court of Carter County, Missouri, case number I4AK-CC001I4.
Request No. 4[3]
All letters, emails and other written correspondence from [Colloms] and/or [Colloms'] counsel to Chris Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding any claim made by [Colloms] stemming from a survey of Lot 1 of Pike Creek Estates conducted by Chris Lambert in Carter County, Missouri.
Request No. 5:
All letters, emails and other written correspondence received from Chris Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding a survey of Lot 1 of Pike Creek Estates conducted by Chris Lambert for Defendants in Carter County, Missouri.
Request No. 6:
All letters, emails and other written correspondence received from Chis Lambert and/or Chris Lambert's counsel and/or Chris Lambert's insurance company(ies) regarding a lawsuit captioned Kirby v. Collom pending in the Circuit Court of Butler ...

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