O'Gorman & Sandroni, P.C. v. Dodson

• Decision Date: 22 December 2015
• Docket Number: No. ED 102312,ED 102312
• Citation: 478 S.W.3d 539
• Parties: O'Gorman & Sandroni, P.C., Respondent, v. Steve Dodson d/b/a Clayton Computer, Appellant.
• Court: Missouri Court of Appeals

478 S.W.3d 539

O'Gorman & Sandroni, P.C., Respondent,

v.Steve Dodson d/b/a Clayton Computer, Appellant.

No. ED 102312

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: December 22, 2015

Erik Charles Zorumski, Ted Daniel Disabato, 727 North First Street, Suite 310, Saint Louis, Missouri 63102, for Appellant.

Richard Joseph Keyes, 12300 Old Tesson Road, Suite 100–B, St. Louis, Missouri 63128, for Respondent.

James M. Dowd, Judge

Steve Dodson appeals from the trial court's judgment for compensatory damages in the amount of $3,962.12 and punitive damages in the amount of $100.00 in favor of O'Gorman and Sandroni, P.C. ("Law Firm") on Law Firm's claim of fraudulent misrepresentation in connection with the sale of a computer system to Law Firm. Dodson raises six points of claimed error: (1) that Dodson was not personally liable because the transaction at issue was between Law Firm and Bios LLC doing business as Clayton Computer; (2) that the evidence did not warrant piercing the corporate veil of Bios LLC to find Dodson personally liable; (3) that the evidence did not support the trial court's finding that Dodson was personally doing business as Clayton Computer; (4) that the evidence did not demonstrate all of the elements necessary to prove fraudulent misrepresentation; (5) that Law Firm failed to prove through admissible evidence that the computer system installed was not the system that Law Firm had ordered; and (6) that there was no basis to award punitive damages. We affirm.

Standard of Review

We will affirm the judgment of a court-tried case unless there is no evidence to support it, it is against the weight of the evidence, or the judgment erroneously declares or misapplies the law. Gibson v. Adams, 946 S.W.2d 796, 800 (Mo.App.E.D. 1997). On review, we view the evidence in the light most favorable to the judgment, meaning we accept all inferences and evidence favorable to the judgment as true and disregard all contrary inferences. Id. ; Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc. , 279 S.W.3d 179, 184 (Mo.banc 2009).

We are bound by the trial court's factual findings if such findings are supported by substantial evidence, and we defer to the trial court's ability to judge the credibility of witnesses. Gibson, 946 S.W.2d at 800. The court is free to believe or disbelieve all, part, or none of the testimony of any witness. Skaggs v. Dial , 861 S.W.2d 188, 191 (Mo.App.W.D. 1993). When no specific findings have been made on a factual issue, we interpret those findings as having been made in accordance with the result reached. Gibson, 946 S.W.2d at 800.

Furthermore, in reviewing a court-tried case, our primary concern is the correctness of the trial court's result, not the route taken to reach it. Smith v. Estate of Harrison, 829 S.W.2d 70, 73 (Mo.App.E.D. 1992). Therefore, we are obliged to affirm if we determine that the trial court reached the correct result, regardless of whether the trial court's proffered reasons are wrong or insufficient. Id.

Discussion

A. Dodson personally sold Law Firm the computer system at issue while doing business as Clayton Computer.

In points one and two, Dodson argues he should not have been held personally liable because he claims the transaction at issue was between Law Firm and Bios LLC and Dodson was merely a member or manager of Bios LLC. Thus, Dodson asserts, the trial court pierced Bios LLC's corporate veil in order to find him personally liable and the trial court erred in doing so. In his related third point, Dodson argues the trial court erred in finding that the transaction at issue was between Law Firm and Dodson personally doing business as Clayton Computer. Because Dodson's third point is dispositive of his points one, two, and three, we address it first.

Dodson argues¹ that the trial court's finding that the transaction at issue was between Dodson personally doing business as Clayton Computer and Law Firm is against the weight of the evidence because his June 2, 2011, fictitious name registration with the Secretary of State that listed him as the owner of Clayton Computer was a mistake. Nevertheless, we find that there was substantial evidence to support the trial court's finding that Dodson was personally doing business as Clayton Computer when he sold Law Firm the computer system at issue.

A judgment should be set aside as against the weight of the evidence only with caution and only when the reviewing court has a firm belief that the judgment is wrong. Scheck Indus. Corp. v. Tar l ton Corp., 435 S.W.3d 705, 717 (Mo.App.E.D. 2014). Initially, we observe that by making an against the weight of the evidence argument, Dodson has thereby acknowledged that there is substantial evidence in the record supporting the trial court's judgment. See id. His challenge is to the probative value of that evidence. See id.

We also note that Dodson's against the weight of the evidence argument has not been properly made. In making such an argument, an appellant is required to: (1) identify the trial court's finding he seeks to challenge as against the weight of the evidence; (2) identify all favorable evidence submitted during trial that would support that finding; (3) identify evidence contrary to the trial court's finding; and (4) explain why, in light of the whole record, the supporting evidence is so lacking in probative value that the trier of fact should have reached a different conclusion. Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 304 (Mo.App.W.D. 2014). Where the appellant fails to follow this framework, the appellant's argument is " ‘analytically useless and provides no support’ " for his or her challenge. In re McDaniel, 419 S.W.3d 828, 834 (Mo.App.S.D. 2013) (quoting Houston v. Crider, 317 S.W.3d 178, 186–87 (Mo.App.S.D. 2010) ).

Dodson argues the trial court's finding was against the weight of the evidence because Dodson repeatedly asserted that Bios LLC owns the Clayton Computer fictitious name registration, not Dodson, and that the June 2011 filing listing Dodson as the owner of the Clayton Computer name was a mistake. Dodson's argument, however, fails to identify any evidence favorable to the trial court's findings, or explain why such evidence lacks any probative value as required.

The parties agree that Bios LLC registered the fictitious name Clayton Computer with the Missouri Secretary of State in 2006. That registration expired in 2011. In June 2011, Dodson filed a renewal of the Clayton Computer name but listed himself as the owner rather than Bios LLC. Dodson testified at trial that he did not intend to change the ownership of Clayton Computer to himself when he filed the 2011 renewal forms. The trial court, however, was entitled to disbelieve such testimony, and we presume that it did so under our standard of review. See Gibson, 946 S.W.2d at 800.

Moreover, we find that there was ample evidence to support the trial court's finding that Dodson was personally doing business as Clayton Computer in connection with the sale of the computer system to Law Firm. In all of the email correspondence that Dodson sent to Law Firm, Dodson identified himself as the owner of Clayton Computer and this same correspondence made no reference to Bios LLC. Dodson fails to explain why such evidence, when considered along with the reasonable inferences drawn therefrom, is so lacking in probative value that the trier of fact should have found that he was not conducting business personally under the fictitious business name Clayton Computer.² Consequently, the weight of the evidence supports the court's finding that Dodson personally sold the computer system to Law Firm under the fictitious name Clayton Computer.

Accordingly, the trial court did not err in entering judgment against Dodson personally. Because this holding is dispositive of points one and two, we need not address those points. Points one, two, and three are denied.

B. There was substantial evidence to support the trial court's finding that Dodson was liable for fraudulent misrepresentation in connection with the sale to Law Firm of the computer system at issue.

In his fourth and fifth points, Dodson challenges the sufficiency of the evidence to support the trial court's finding of fraudulent misrepresentation. Because these points are interrelated, we address them together for ease of analysis.

Dodson contends that the evidence did not prove all of the elements of fraudulent misrepresentation and that the court erred in considering the hearsay statements of two of Clayton Computer's employees. We first consider whether the hearsay statements of the employees should have been excluded.

Dodson concedes on appeal, and our review of the record confirms, that he did not object³ to the testimony offered by Law Firm's president, Sean O'Gorman, in which O'Gorman repeated hearsay statements purportedly made by Clayton Computer's employees Travis Miller and A.J. Hearsay testimony that is admitted without objection may be considered as evidence by the trier of fact. In re C.M.B.R., 332 S.W.3d 793, 815 (Mo.banc 2011). Here, because Dodson did not object to the testimony, it was properly admitted as evidence and could be considered by the trier of fact. Dodson's fifth point, therefore, lacks merit and we will review such testimony together with all of the other evidence in the record to determine whether the weight of the evidence proves all of the elements of fraudulent misrepresentation.

In Missouri, a plaintiff must establish by a preponderance of the evidence the following nine elements to prove fraudulent misrepresentation: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) the speaker's intent that it should be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) his or her right to rely thereon; and (9) the hearer's consequent and proximate injury....