Layton v. Baris

• Decision Date: 20 February 2001
• Citation: 43 S.W.3d 390
• Parties: (Mo.App. E.D. 2001) Ralph Layton and Loraine Layton, Appellants/Cross-Respondents, v. Irl B. Baris, Respondent/Cross-Appellant ED76562 0
• Court: Missouri Court of Appeals

43 S.W.3d 390 (Mo.App. E.D. 2001)

Ralph Layton and Loraine Layton, Appellants/Cross-Respondents, v. Irl B. Baris, Respondent/Cross-Appellant

ED76562

Missouri Court of Appeals Eastern District

02/20/2001

Appeal From: Circuit Court of St. Louis County, Hon. Emmett M. O'Brien

Counsel for Appellant: V. Gina Tocco

Counsel for Respondent: Irl B. Baris and Jon M. Baris

Opinion Summary: Ralph Layton (Father) appeals the judgment in favor of Irl Baris (Attorney) in Attorney's action to collect a fee for legal services performed pursuant to an oral contract. Attorney cross-appeals the judgment notwithstanding the verdict entered in favor of Loraine Layton (Mother) and the denial of his motion for prejudgment interest.

Division Three holds: (1) Father's appeal is dismissed because his statement of facts omits virtually all evidence supporting the verdict in violation of Rule 84.04(c). (2) The trial court erroneously granted JNOV to Mother because Attorney made a submissible case. (3) Attorney was entitled to prejudgment interest from the date his attorney made a demand for a liquidated amount.

Lawrence G. Crahan, Judge

Ralph Layton ("Father") appeals the judgment rendered in favor of Irl Baris ("Attorney") in Attorney's action to collect a fee for legal services performed pursuant to an oral contract. Attorney cross-appeals the judgment notwithstanding the verdict entered in favor of Loraine Layton ("Mother") and the denial of his motion for prejudgment interest. We dismiss Father's appeal, reverse the judgment entered in favor of Mother and remand for an award of prejudgment interest.

We will first address Attorney's motion to dismiss Father's appeal for failure to comply with various subparagraphs of Rule 84.04. Although many of these deficiencies were later corrected by leave of court, we cannot overlook or excuse Father's failure to submit a fair and concise statement of the facts relevant to the questions presented for determination as required by Rule 84.04(c). In his appeal, Father challenges the sufficiency of the evidence to support the verdict, the size of the verdict, admission of alleged "perjured" testimony, jury instructions (which were not set forth in the argument in violation of Rule 84.04(e)), and error in bifurcating the trial. In order to comply with Rule 84.04(e), it was thus incumbent upon Father to provide this court with a statement of the evidence in the light most favorable to the verdict, not simply recount Father's version of events. Hoer v. Small, 1 S.W.3d 569, 572 (Mo. App. 1999). Virtually all of the evidence supporting the verdict is found in Attorney's testimony. Father's brief wholly ignores Attorney's version of events. It omits entirely Attorney's testimony as to specific conversations he had with Father and Mother on which Attorney based his claim for breach of an oral contract.

Father's justification for omitting Attorney's version of events is that he submitted only those facts that he and Attorney do not dispute in order to comply with the requirement of Rule 84.04(e) that the recitation of facts be "without argument." Father cites no authority for this novel interpretation of the phrase "without argument" and we find that Father's interpretation is specious. As we have explained on more than one occasion, Rule 84.04(c) requires a concise statement of the evidence most favorable to the verdict, not just the evidence which was not disputed. Id.; Evans v. Groves Iron Works, 982 S.W.2d 760, 762 (Mo. App. 1998). Omission of virtually all of the facts supporting the verdict warrants dismissal of the appeal. Id. Accordingly, we sustain Attorney's motion and dismiss Father's appeal.¹

We now turn to Attorney's cross-appeal. In his first point, Attorney contends the trial court erred in sustaining Mother's motion for judgment notwithstanding the verdict. Review of the trial court's ruling on a motion for judgment notwithstanding the verdict is performed regarding the evidence in the light most favorable to the jury's verdict. Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998). We look at all favorable evidence and reasonable inferences flowing therefrom, discarding all unfavorable evidence and inferences. Id. We will affirm the trial court's grant of the motion only where we find that the plaintiff failed to make a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). A presumption exists favoring the reversal of a motion for judgment notwithstanding the verdict. Faust v. Ryder Commercial Leasing & Servs., 954 S.W.2d 383, 388 (Mo. App.1997). We leave the ruling intact only where the favorable evidence and inferences are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to the result. Id.

Essentially, a motion for judgment notwithstanding the verdict is a challenge to the submissibility of the case. Allstates Transworld Vanlines, Inc. v. Southwestern Bell Tel. Co., 937 S.W.2d 314, 316 (Mo. App. 1996). Thus, the motion is properly granted where the evidence does not support one or more elements of the plaintiff's case. Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc., 941 S.W.2d 609, 611 (Mo. App. 1997). In order to make a submissible case, the plaintiff must present substantial evidence supporting each element of his or her claim. Spring v. Kansas City Area Transp. Auth., 873 S.W.2d 224, 225 (Mo. banc 1994).

In order to make a submissible case of breach of contract, the complaining party must establish: 1) the existence of a valid contract; 2) the rights and obligations of the respective parties; 3) a breach; and, 4) damages. Rice v. West End Motors, Co., 905 S.W.2d 541, 542 (Mo. App. 1995). The evidence in the light most favorable to the verdict was as follows:

Attorney has been practicing law for over 50 years. In 1982, Father contacted Attorney concerning a federal grand jury investigation. Attorney represented him as requested. There was no written contract for the representation, and Father paid the fee.

On Friday, January 17, 1986, Father called Attorney with reference to the arrest that day of his daughter, Kathleen Sparks, now known as Kathleen Hall ("Daughter"). He explained briefly that Daughter had been arrested for attempting to murder her husband, with whom she was involved in a pending dissolution proceeding. Attorney explained that he was preparing for a trial commencing on the following Tuesday in Rolla, Missouri, and made an appointment for Father to come to his office on Saturday, January 18, with Daughter. On Saturday, Attorney talked briefly with Father and Daughter together in an attempt to get the initial facts and to gain the confidence of Daughter. He was briefly advised as to the facts, that an appearance bond had been signed by Father and Mother, that there was a domestic suit involving a three-year old son, and there were other related problems.

Attorney then met privately with Daughter for about three hours while Father waited in the outer office. After that conference, he brought Father back into the private office. Attorney was informed that the criminal case was pending, that there had been tape recordings of conversations between Daughter and the alleged hit-man, and that there was a bitter dispute over the custody of Daughter's child. Attorney explored the impact of the arrest upon the access to the child by Daughter, Mother and Father. They also discussed an adult abuse case that had been filed at the time of the arrest, a habeas corpus proceeding with reference to the child, and other matters. Attorney learned that another attorney was representing Daughter in the dissolution proceeding. Attorney testified that in this conference Father was supportive of Daughter and said that he would support her, not put her out in the street, and that she would have what she needed.

Attorney then discussed fees with Daughter and Father. In that conference, Father said that he would pay her expenses with the hope that perhaps they could collect from Daughter's husband, but Father promised to pay what likely would be substantial fees. Father was also concerned about his personal liability because some events connected with the alleged attempted murder had taken place in his house, and Father indicated that he also needed protection. Father promised to pay the fee according to the rates discussed ($175.00 per hour for Attorney's time, $25.00 per hour for paralegal time, plus reimbursement for expenses) and to send a check for $5,000.00 while Attorney was in Rolla. There was no written agreement because it was not customary at that time for Attorney to have a written agreement where he was being paid on an hourly basis.

While Attorney was in trial in Rolla, he was informed by his office that a check for $5,000.00 had been received, and he instructed his secretary to make an appointment for Daughter to come to the office on Saturday, January 25, 1986. She did come in at that time, accompanied by Mother, to whom Attorney was introduced. Attorney met privately with Daughter for about four hours and then walked her out to the outer office. Mother asked if Attorney had received a check from her husband, and then stated that they would pay what was needed to protect their daughter and get back their grandson. Mother told Daughter in Attorney's presence that she and her husband would take care of everything. She also gave Attorney the names of some witnesses and said that she might know an investigator who could work on the case.

Attorney testified to all of the services he performed. He represented Daughter in the criminal case and soon became involved in other matters concerning Daughter and her parents. He investigated a pending adult abuse case and a habeas corpus proceeding, and subsequently was advised that a replevin action had been filed by Daughter's husband's automobile agency for a vehicle which had been in the possession of Daughter. Father and Mother...