V & P Trading Co. v. United Charter, LLC

In this premises liability case, the trial court denied a motion by plaintiff V & P Trading Co., Inc. (V & P), to compel defendants United Charter, LLC, and Raymond Zhang (jointly United Charter) to answer a set of special interrogatories and awarded monetary discovery sanctions to United Charter because V & P was a suspended corporation that lacked the capacity to prosecute the action when the motion to compel was filed. Subsequently, the trial court granted summary judgment to United Charter based on the statute of limitations because the limitations period had run while V & P was suspended.

On appeal, V & P contends the trial court erred in denying the motion to compel and in granting summary judgment because United Charter waived the defense of V & P’s lack of capacity to sue by failing to plead that defense in its answer. V & P also contends that, in any event, the trial court abused its discretion in awarding discovery sanctions because United Charter did not *130 raise V & P’s lack of capacity to sue until after V & P filed its motion to compel, and based on that fact V & P acted with substantial justification in filing the motion.

We conclude the trial court did…