C & W Asset Acquisition, LLC v. Somogyi

• Citation: 136 S.W.3d 134
• Decision Date: 26 May 2004
• Docket Number: No. 25764.,25764.
• Parties: C & W ASSET ACQUISITION, LLC, Plaintiff-Appellant, v. Janos SOMOGYI, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

136 S.W.3d 134

C & W ASSET ACQUISITION, LLC, Plaintiff-Appellant, v. Janos SOMOGYI, Defendant-Respondent.

No. 25764.

Missouri Court of Appeals, Southern District, Division Two.

May 26, 2004.

Thomas J. Fritzlen, Jr., Martin, Leigh, Laws & Fritzlen, P.C., Kansas City, MO, for appellant.

John E. Curran, Osage Beach, MO, Brook McCarrick, for respondent.

NANCY STEFFEN RAHMEYER, Chief Judge.

C & W Asset Acquisition, L.L.C. ("Appellant") appeals from the trial court's dismissal of its petition against Janos Somogyi ("Respondent"). Appellant argues the trial court erred in excluding certain documents for failing to meet the requirements of Section 490.680.¹ We affirm.

The record reveals that on May 9, 1998, Respondent entered into a credit card agreement with MBNA Bank of America ("MBNA") whereby MBNA agreed to extend credit to Respondent and he agreed to pay the amount advanced plus interest. According to Appellant, on July 18, 2001, Appellant became the owner and holder of Respondent's credit agreement through an assignment from MBNA. On October 22, 2001, The Cadle Company ("Cadle"), acting as "servicer" for Appellant, made written demand on Respondent for the principal balance of $12,730.37, in addition to accrued interest. When Respondent failed to pay the amount requested, Appellant filed suit on the credit agreement.

At trial on April 7, 2003, the only evidence offered by Appellant was Exhibit 1,² which it sought to introduce under the business records exception to the hearsay rule. See § 490.692. Respondent objected to Exhibit 1 on several grounds. He argued that the affidavit of Spoonamore, a Cadle employee, did not comply with Section 490.692, in that Cadle was not involved in the litigation and there was no evidence as to the business relationship between Appellant and Cadle; therefore, the documents and the affidavit were hearsay. Additionally, Respondent argued "the affidavit on its face is somewhat suspect. If, according to the affidavit itself, this is a compilation of records from MBNA Mastercard, which in turn has supposedly ... had the Cadle Company act as a servicer, there isn't any way that [Spoonamore] would have knowledge of the MBNA account, and she doesn't say that." Further, Respondent argued that Exhibit 1 did not even show that Appellant was the true party in interest to this litigation. Respondent stated that the three pages supposedly evidencing the "Loan Sale Agreement" between MBNA and Appellant were severely redacted, did not correlate, and failed to show that Appellant was the actual owner of the credit agreement. Respondent concluded by stating, "there [are] no assurances that MBNA America or some other assignee of MBNA America will [not] come in and sue [Respondent] again, saying that they really were the person or entity who took title to [the] account." The trial court took Respondent's objection under advisement. At the close of Appellant's case, Respondent offered no evidence and moved for a dismissal.

In dismissing Appellant's petition, the trial court found:

The affidavit does not state the affiant has any knowledge of MBNA Bank of America's records; their mode of preparation or whether MBNA's records of the account were made in the regular course of business at or near the time of the act, condition or event as prescribed by RSMo [Section] 490.680. In fact, the affidavit makes no mention of MBNA at all.

The Court finds that Exhibit 1 is not adequate to provide a basis for the admission of the business records contained in Exhibit 1 since the source of information is not such as to justify the admission of the record pursuant to RSMo [Section] 490.680.

Appellant asserts two points on appeal. As best we can discern, Appellant's first point argues that the judgment was against the weight of the evidence in that the trial court improperly excluded Exhibit 1 and had Exhibit 1 not been excluded, Appellant would have prevailed. Second, Appellant argues "[t]he trial court abused its discretion in excluding [Appellant's] Exhibit 1, the affidavit and business records, because the affidavit and business records were admissible and complied with [Section] 490.680."

Taking Appellant's points out of order, we first consider whether the trial court abused its discretion in excluding Appellant's Exhibit 1. The admissibility of evidence lies within the sound discretion of the trial court; therefore, there can be no error absent a showing that the court abused its discretion. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000). In reviewing for an abuse of discretion, we presume the trial court's ruling is correct, and reverse only when that

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; if reasonable persons 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.

Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

At the outset, we note that Point II fails to comply with Rule 84.04(d).³ Rule 84.04(d) requires that each point relied on: (1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. State v. Nunley, 103 S.W.3d 374, 376 (Mo. App. W.D.2003). Here, while Appellant's second point relied on provides the legal basis for their allegation of error, the point nonetheless falls short by its failure to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(B)-(C). Further, Point II offers no hint as to how the facts in the case demonstrate a lack of careful consideration by the trial court, how the ruling shocks any sense of justice, or in what respect applicable statutory factors were not applied. As such, Appellant's point is little more than an "[a]bstract statement of law," which, standing alone, fails to comply with Rule 84.04(d). However, because we can glean the legal reasons from Appellant's argument we will address the merits of its claim.

Section 490.680, which sets forth the foundational requirements for a document to be admitted under the business record exception to the hearsay rule, provides:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

When the enumerated statutory requirements are met, "the statute invests the record with a presumptive verity, and so excepts them from the hearsay rule." Davolt v. Highland, 119 S.W.3d 118, 134 (Mo. App. W.D.2003) (citing Piva v. Gen. Am. Life Ins. Co., 647 S.W.2d 866, 877 (Mo. App. W.D.1983)). The trial court has broad discretion in determining whether a party properly complied with this provision. Waldron v. Ragland, 716 S.W.2d 861, 862 (Mo.App. E.D.1986). Thus, "the bottom line" regarding the admissibility of the business records is the discretionary determination by the trial court of their trustworthiness. Davolt, 119 S.W.3d at 134 (citing The Rouse Co. of Missouri, Inc., v. Justin's, Inc., 883 S.W.2d 525, 530 (Mo.App. E.D.1994)); see also Section 490.680.

In this case, Appellant did not present the custodian of the records or any other witness to identify the records; instead, Appellant relied upon the filing of an affidavit prepared in accordance with Section 490.692, which states in pertinent part:

1. Any records or copies of records reproduced in the ordinary course of business ... that would be admissible under sections 490.660 to 490.690 shall be admissible as a business record, subject to other substantive or procedural objections, in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of sections 490.660 to 490.690, that the records attached to the affidavit were kept as required by section 490.680.

....

3. The affidavit permitted by this section may be in form and content substantially as follows[.]

This Section

provides a practical way to avoid the necessity of a personal appearance by a records custodian. Upon compliance with §§ 490.680 and 490.692, business records may be admitted into evidence without any additional direct testimony. The court's decision whether to admit the business records remains a discretionary determination of the trustworthiness of the records.

Tebow v. Dir. of Revenue, 921 S.W.2d 110, 113 (Mo.App. W.D.1996) (internal citations omitted).

We agree with Appellant that the Spoonamore affidavit substantially complies with the form and content requirements of Section 490.692. See Wisdom v. Dir. of Revenue, 988 S.W.2d 127, 129 (Mo.App. S.D.1999) (stating that the affidavit should substantially comply with the form and content set forth in the statute). However, we disagree with Appellant's argument that statutory compliance with Section 490.692 is all that is required to have the documents included as business records.

The ultimate determination is whether in the opinion of the trial court the sources of the documents justify [their] admission. See § 490.680; Tebow, 921 S.W.2d at 113.

Here, there is simply no justification for the admission of these records pursuant to Section 490.680. Appellant relies on Tomlin v. Alford for the proposition that personal knowledge of the accuracy of these entries on the part of the custodian of records is not a requirement. Tomlin v. Alford, 351...