J.C. Jones and Co. v. Doughty, 15363

Citation760 S.W.2d 150
Decision Date25 October 1988
Docket NumberNo. 15363,15363
PartiesJ.C. JONES AND COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. Don DOUGHTY and Linda Doughty, Defendants-Respondents.
CourtCourt of Appeal of Missouri (US)

John R. Lewis, Lewis & Stevens, P.C., Stephen L. Shepard, Dwight E. Rahmeyer, Shepard & Rahmeyer, P.C., Springfield, for plaintiff-appellant.

Craig F. Lowther, Kendall R. McPhail, Lowther, Johnson, Lowther, Cully & Housley, Springfield, for defendants-respondents.

FLANIGAN, Presiding Judge.

Plaintiff J.C. Jones and Company, a Missouri corporation, brought this action against defendants Donald Doughty and Linda Doughty, husband and wife. On December 24, 1985, defendants offered to sell plaintiff a 35-acre tract of land ("the land") in Springfield. Whether the parties' subsequent dealings ripened into a binding contract is one of the issues. On January 10, 1986, defendants entered into a contract with a partnership known as Stenger-Pendleton Investments ("Stenger"), whereby Stenger agreed to buy the land for $305,000. Pursuant to that contract, the defendants conveyed the land to Stenger on February 11, 1986.

On January 10, 1986, plaintiff brought the instant action ("the main action"). On January 12, 1986, personal service of the suit papers was obtained on defendants at their residence in Greene County. On January 21, 1986, attorney Craig Lowther entered his appearance for defendants.

On February 10, 1986, plaintiff purchased the land from Stenger for $405,000.

On February 11, 1986, plaintiff, through its president and sole shareholder Jim C. Jones, filed, in the main action, an "Affidavit to Obtain Writ of Attachment," and on the same date the trial court issued a writ of attachment. Plaintiff's pleadings in the main action admitted that, pursuant to the writ of attachment, the sheriff of Greene County "did levy upon and garnish" defendants' joint bank accounts. The bank accounts, located at Boatmen's National Bank of Springfield, totaled $15,836.73.

Defendants filed a motion to dissolve the writ of attachment and, on February 19, 1986, an evidentiary hearing on that motion was held before Judge David Anderson. On March 18, 1986, Judge Anderson overruled that motion.

On March 25, 1986, Judge Anderson disqualified himself. Later the Missouri Supreme Court appointed Judge L. Thomas Elliston as the trial judge. On March 6, 1987, Judge Elliston dissolved the attachment and ordered release of the bank accounts.

The case proceeded to a nonjury trial before Judge Elliston on plaintiff's three-count petition and defendants' six-count counterclaim. Only Count I of the petition and Counts V and VI of the counterclaim need be considered. Count I of the petition was for breach of the contract for the sale of the land and sought damages in the sum of $150,000. Count V of the counterclaim sought $150,000 in actual damages for wrongful attachment. Count VI of the counterclaim incorporated Count V and sought $850,000 in punitive damages.

On September 9, 1987, the trial court entered its judgment finding in favor of defendants and against plaintiff on all three counts of the petition. The judgment reiterated Judge Elliston's ruling on the dissolution of the attachment. With respect to the counterclaim, the trial court found in favor of plaintiff and against defendants on the first four counts. On Count V of the counterclaim the court found in favor of defendants and against plaintiff and awarded $10,514.94. On Count VI of the counterclaim the trial court found in favor of defendants and against plaintiff and awarded $50,000. The judgment also awarded defendants $1,277.40 based on a motion for attorney's fees filed by defendants under § 514.205. 1 Plaintiff appeals.

In general, plaintiff claims that the trial court erred: (1) in denying plaintiff relief on Count I of the petition; (2) in "prejudging" Count I of the petition; (3) in entering the order of March 6, 1987, dissolving the attachment; (4) in granting defendants relief on Count V and Count VI of the counterclaim; (5) in awarding defendants $1,277.40 attorney fees under § 514.205; and (6) in failing to include, in its final judgment, "a disposition of the writ of attachment." Only claim (4) has merit.

Plaintiff's first point reads:

"The trial court erred in entering judgment in favor of the defendants and against the plaintiff [on Count I of the petition] because: (a) the court misapplied the law and facts on the issue of offer and acceptance, and (b) the court misapplied the law and the facts on the issue of conditions subsequent."

The foregoing point preserves nothing for appellate review because it fails to comply with Rule 84.04(d). That rule requires that a point state "briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous." The rule also states: "Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule."

This court must confine its review to the points briefed, Kurtz v. Fischer, 600 S.W.2d 642, 645 (Mo.App.1980), and, of course, Rule 84.04(d) applies to review of court-tried cases as well as cases tried to a jury. Plaster v. Standley, 569 S.W.2d 784, 787 (Mo.App.1978).

A point consisting merely of an abstract statement of law does not comply with Rule 84.04(d). Draper v. Aronowitz, 695 S.W.2d 923, 924 (Mo.App.1985). A point stating that the trial court erred in that it "erroneously applied and declared the law" is nothing but an abstract statement and preserves nothing for review. Best v. Culhane, 677 S.W.2d 390, 394 (Mo.App.1984). "It is not enough for the point, as here, via conclusions of claimed error to simply say the trial court was wrong without alluding to some evidence or testimony which gives support to such conclusions." Montesano v. James, 655 S.W.2d 137, 139 (Mo.App.1983). See also Kelly v. City of St. Louis Bd. of Adj., 745 S.W.2d 177 (Mo.App.1987).

As the Supreme Court of Missouri pointed out in Thummel v. King, 570 S.W.2d 679, 686 (Mo.1978), the requirement of Rule 84.04(d) "is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts." In Thummel the court discussed the "sound policy" underlying Rule 84.04(d). That discussion need not be repeated here but it merits careful reading.

This court is under no duty "to search either the transcript on appeal or the argument portion of an appellant's brief to come by the meaning of a point on appeal." Barber v. MFA Milling Company, 536 S.W.2d 208, 210 (Mo.App.1976). See also Brewer v. Blanton, 555 S.W.2d 381, 386 (Mo.App.1977).

This court has made a gratuitous examination of plaintiff's argument under its first point and no plain error, within the meaning of Rule 84.13(c), appears. Plaintiff, according to its brief, is a Missouri corporation whose primary business is "a real estate brokerage service" but it also does some "real estate developing." Its president and sole shareholder is Jim C. Jones, who is a licensed real estate broker. Defendant Don Doughty is a licensed real estate agent associated with another realty firm known as Carol Jones Realtors.

Between December 17, 1985, and January 6, 1986, there were numerous communications, written and oral, between plaintiff and defendants. In addition to Jim Jones, other participants in those communications were Charles Ellis, Bill Drummond, and Thomas Barnett, all affiliated with plaintiff. Also participating, in addition to the defendants, were Bo Misemer and Jerry Sellers, who are affiliated with Carol Jones Realtors. Apparently everyone wanted to get into the act.

This court has read the ponderous record on appeal. The legal file portion of it consists of 469 pages, many of which are unnecessary. A supplemental legal file provided by defendants consists of 108 pages. The transcript consists of six volumes. There are 676 pages in the three volumes which contain the testimony at the trial.

To say the least, the record is replete with major conflicts in testimony concerning who said what to whom at what time and what actions, if any, were taken. Significantly, Jim Jones admitted that he signed the alleged contract on January 2 but that he dated the document December 31.

No purpose would be served in undertaking the formidable task of recounting the trial testimony concerning the dealings of plaintiff and defendants with respect to the land. The trial court reached the right result in denying plaintiff relief on Count I of the petition. Defendants' first point, even if it had been properly preserved, has no merit.

Plaintiff's second point reads:

"The trial court erred in entering judgment in favor of defendants and against the plaintiff [on Count I of the petition] because the trial court prejudged plaintiff's claim for breach of contract and determined that plaintiff had no cause of action prior to receiving any evidence on that claim."

Plaintiff makes no mention of any statement or other conduct on the part of Judge Elliston to support its assertion that Judge Elliston "prejudged" the claim. Instead plaintiff merely describes certain of the pleadings and some of the proceedings, including the hearing before Judge Anderson on defendants' motion to dissolve the attachment. Plaintiff then states: "Plaintiff had the burden to prove its ground for attachment and it did." The fact is, as this court will later hold in this opinion, there was a failure on the part of plaintiff to prove, at the hearing of February 19, 1986, "that the attachment was properly granted," Rule 85.14(b), and Judge Elliston properly dissolved the attachment.

Plaintiff's brief says:

"The defendants had already lost the issue on whether there was any ground for attachment at the evidentiary hearing before Judge Anderson. This could not, therefore,...

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7 cases
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    • United States
    • Missouri Court of Appeals
    • 28 Enero 1994
    ...to extract the import of the point from the argument that follows it, a chore we are not obliged to undertake. J.C. Jones and Co. v. Doughty, 760 S.W.2d 150, 153 (Mo.App.S.D.1988); Tripp v. Harryman, 613 S.W.2d 943, 950 As we have seen, the site the City chose for the MRF is zoned "A-1 Agri......
  • Reese v. Reese, 19204
    • United States
    • Missouri Court of Appeals
    • 13 Octubre 1994
    ...of sentence was suspended. As a result of such failure, the point is not preserved for appellate review. J.C. Jones & Co. v. Doughty, 760 S.W.2d 150, 161 (Mo.App.S.D.1988). Nevertheless, we have also reviewed the record for plain error with regard to this contention. In so doing, we note th......
  • Gibson v. Gibson-Cato, GIBSON-CAT
    • United States
    • Missouri Court of Appeals
    • 7 Abril 1997
    ...to divine the import of the point from the argument that follows it, a task we are not obliged to undertake. J.C. Jones and Co. v. Doughty, 760 S.W.2d 150, 153 (Mo.App. S.D.1988); Abney v. Farmers Mutual Insurance Co. of Sikeston, 608 S.W.2d 576, 577-78 (Mo.App. S.D.1980). By doing so, we d......
  • Kennedy v. State, 15957
    • United States
    • Missouri Court of Appeals
    • 18 Mayo 1989
    ...relied on. Claims of error not properly asserted in the points relied on preserve nothing for appellate review. J.C. Jones and Co. v. Doughty, 760 S.W.2d 150, 152 (Mo.App.1988); Rules 84.04(d) and The first point we address is movant's claim that the court erred when it failed to set forth ......
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