Dills v. Dills

• Decision Date: 27 January 2010
• Docket Number: No. SD 29234.,SD 29234.
• Citation: 304 SW 3d 738
• Parties: Thu-Nga T. DILLS, Respondent, v. John Ben DILLS, Appellant.
• Court: Missouri Court of Appeals

304 S.W.3d 738

Thu-Nga T. DILLS, Respondent, v. John Ben DILLS, Appellant.

No. SD 29234.

Missouri Court of Appeals, Southern District, Division One.

January 27, 2010.

David G. Neal, Eminence, for Appellant.

Jeri Leigh Caskey, Alton, for Respondent.

ROBERT S. BARNEY, Judge.

John Ben Dills ("Appellant") appeals the judgment of the trial court which denied his four counterclaims filed against Thu-Nga Dills ("Respondent"). Appellant asserts one point relied on centering on his allegation that the trial court erred as a matter of law in finding that he failed to make his "Burden of Proof" on each of his counterclaims.

"This Court's review of the trial court's judgment is governed by Rule 84.13(d),¹ and will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously applies the law." Myers v. Myers, 47 S.W.3d 403, 406 (Mo.App.2001); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).² In our review, this Court defers to the trial court in issues of witness credibility and "`accepts as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence.'" Kleeman v. Kingsley, 167 S.W.3d 198, 202 (Mo.App.2005) (quoting Behr v. Bird Way, Inc., 923 S.W.2d 470, 472 (Mo.App.1996)). "The trial court is entitled to believe all, part, or none of the testimony of any witness." Kickham v. Gardocki, 966 S.W.2d 361, 362 (Mo.App.1998). "An appellate court should set aside a judgment with caution and only with a firm belief that it is against the weight of the evidence." Myers, 47 S.W.3d at 406. The phrase "weight of the evidence," for purposes of review of a bench tried case, "means its weight in probative value, not the quantity or amount of evidence." Lee v. Hiler, 141 S.W.3d 517, 525 (Mo.App.2004). Where the trial court does not include findings of facts in its judgment, and neither party requests them, all factual issues must be assumed to have been found in accordance with the results reached. Carolan v. Nelson, 226 S.W.3d 923, 925 (Mo.App.2007). "The trial court judgment is presumed correct" and this Court affirms the judgment of the trial court "under any reasonable theory supported by the evidence." GMAC v. Crawford, 58 S.W.3d 529, 532 (Mo.App.2001).

Viewing the evidence in the light most favorable to the trial court's judgment, as we must, id., the record reveals Appellant and Respondent were romantically involved from approximately 1990 until some point in time in 2001 when the relationship ended. In January of 2002, Respondent filed a "Petition for Replevin" against Appellant in which she sought the return of certain personal items she asserted he had wrongfully retained. Appellant then filed counterclaims against Respondent requesting damages for breach of express contract, breach of implied contract, breach of fiduciary duty, and quantum meruit. After a court tried case, the trial court found that Respondent "presented no evidence with regard to value and therefore, judgment for replevin is not allowed. In addition, Respondent failed to meet her burden with regard to possession of the remaining items pleaded." As to Appellant's counterclaims, the trial court found:

Appellant has failed to meet his burden of proof with regard to all four counts. In so finding, the Court notes specifically that Appellant had the burden to prove the terms of an alleged express contract and he failed to do so. In addition, the court was unable to ascertain with any degree of certainty what amount of value, if any, should be placed on Appellant's contributions to the construction of Respondent's house.

Accordingly, the trial court granted no recovery for either party except that costs were assessed against Respondent. This appeal followed.

Appellant's sole point relied on states verbatim:

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT APPELLANT HAD NOT MET HIS `BURDEN OF PROOF,' i.e. FAILED TO MAKE A SUBMISSIBLE OR PRIMA FACIE CASE, ON EACH OF THE FOUR COUNTS OF HIS COUNTERCLAIM, BECAUSE A COURT'S FINDINGS,

EVEN THOUGH VOLUNTARILY MADE, ARE SUBJECT TO REVIEW AND REVERSAL IF IN ERROR, AND CONSIDERING THEY ADDRESS THE SUFFICIENCY RATHER THAN THE WEIGHT OF THE EVIDENCE, ARE LEGAL DETERMINATIONS AND THUS SUBJECT TO DE NOVO REVIEW BY THIS COURT, AND THOSE FINDINGS ERRONEOUSLY CONCLUDED THAT APPELLANT'S PROOF FELL SHORT OF ESTABLISHING ALL THE REQUIRED ELEMENTS NECESSARY TO SUPPORT A JUDGMENT, WHEN HIS EVIDENCE WAS NOT DEFICIENT IN THAT MANNER, IN THAT:

I. AS TO COUNT I UPON AN EXPRESS CONTRACT, THE JUDGE FOUND CERTAIN TERMS, ALTHOUGH NOT IDENTIFIED, WERE NOT PROVEN, BUT BOTH PARTIES AGREED A CONTRACT EXISTED AND EVEN AGREED ON THE ESSENTIAL TERMS — A POOLING OF RESOURCES AND AN EQUAL DIVISION OF THE PROFITS — AND ANY MISSING OR VAGUE TERMS SHOULD HAVE BEEN SUPPLIED OR CLARIFIED BY THE COURT BECAUSE, AS HERE, A CONTRACT MAY NOT FAIL FOR WANT OF DEFINITENESS WHEN ONE OF THE PARTIES HAS SECURED THE BENEFIT OF PERFORMANCE, AND RESPONDENT HAD ALREADY RECEIVED THE BENEFIT OF MORE THAN 12 YEARS OF APPELLANT'S UNCOMPENSATED LABOR;

II. AS TO COUNT II FOR IMPLIED CONTRACT, ESTABLISHED AUTHORITY MAKES IT CLEAR THAT WHERE PERSONS LIVE TOGETHER AS HUSBAND AND WIFE, ALTHOUGH UNMARRIED, AND JOINTLY ENGAGE IN BUSINESS VENTURES OVER A NUMBER OF YEARS UPON AN `UNDERSTANDING' THEY WILL SHARE IN THE BENEFITS, JUST AS IT HAPPENED IN THIS CASE OVER A 12 YEAR SPAN, A VALID CLAIM IS MADE IN IMPLIED CONTRACT;

III. AS TO COUNT III FOR BREACH OF FIDUCIARY DUTY, ESTABLISHED AUTHORITY MAKES IT CLEAR THAT WHEN PERSONS LIVE TOGETHER AND POOL THEIR FUNDS, AS IN THIS CASE, A FIDUCIARY RELATIONSHIP ARISES AND THAT WHEN RESPONDENT TOOK CONTROL OF APPELLANT'S EARNINGS AND DIVERTED THEM TO HER OWN USE IT CONSTITUTED A BREACH OF THAT FIDUCIARY RELATIONSHIP AND CREATED A VALID CAUSE OF ACTION; AND

IV. AS TO COUNT IV FOR QUANTUM MERUIT, THE JUDGE FOUND APPELLANT HAD NOT PROVEN WITH REQUISITE `CERTAINTY' THE VALUE OF HIS CONTRIBUTIONS IN LABOR TO THE CONSTRUCTION OF RESPONDENT'S HOME, BUT APPELLANT TESTIFIED HE HAD DEVOTED 2787 HOURS TO THAT PROJECT AND HE FIGURED HIS TIME TO BE WORTH $8.00 PER HOUR, AND BECAUSE A CLAIMANT IN QUANTUM MERUIT IS A COMPETENT WITNESS AS TO THE VALUE OF HIS OWN SERVICES THEN APPELLANT, DESPITE WHAT THE JUDGE CONCLUDED, DID MAKE A PRIMA FACIE CASE.

A close reading of Appellant's multifarious point relied on reveals Appellant is attempting to attack the trial court's ruling that he "HAD NOT MET HIS `BURDEN OF PROOF,' i.e., FAILED TO MAKE A SUBMISSIBLE OR PRIMA FACIE CASE. . . ."³ Appellant is not attacking the trial court's judgment as a whole or even asserting there was insufficient evidence to support the trial court's judgment. "When courts discuss the burden of proof, there are two components: the burden of producing (or going forward with) evidence and the burden of persuasion." Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 53 (Mo. banc 2001). As stated in 29 Am.Jur.2d Evidence section 171 (2008):

the term `burden of production' tells a court which party must come forward with evidence to support a particular proposition, whereas `burden of persuasion' determines which party must produce sufficient evidence to convince a judge that a fact has been established.

To satisfy the burden of production is also sometimes referred to as making out a prima facie case. . . . Thus, proof of the underlying fact is enough to survive a motion for a directed verdict.

Whether a party has satisfied its burden of production is not an issue of fact for the fact finder; it is an issue of law. It arises when, after a party rests, an opposing counsel brings a motion for a directed verdict or the like.

The burden of persuasion aspect of the burden of proof describes the obligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true.

See also McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 561-63 (1932).⁴

Here, Appellant "had the burden of proving his counterclaims against Respondent. . . ." Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999). The trial court made no findings on whether Appellant met his burden of production, "i.e. failed to make a submissible or prima facie case . . .," although this is the finding challenged by Appellant in his sole point relied on. The trial court simply found Appellant...