Looney v. Estate of Eshleman, 16249

Decision Date23 January 1990
Docket NumberNo. 16249,16249
Citation783 S.W.2d 164
PartiesKeith LOONEY, Plaintiff-Appellant, v. ESTATE OF Verla V. ESHLEMAN, Defendant-Respondent.
CourtMissouri Court of Appeals

Jimmie A. Smith, Republic, for plaintiff-appellant.

Susan Appelquist, Appelquist Law Offices, Springfield, for defendant-respondent.

PREWITT, Judge.

Plaintiff filed a claim against the estate of Verla V. Eshleman, contending that he was entitled to a commission for conducting an auction of real estate for the estate. Following nonjury trial the court denied his claim. Plaintiff appeals.

Plaintiff's point on appeal states: "The Trial Court erred through abuse of discretion in assigning weight and credibility to the evidence in finding against Appellant." In the argument portion of his brief plaintiff seems to clarify his contention by stating that "the record will show that the weight of the credible evidence at trial was heavily in favor of Appellant. It is therefore Appellant's position that the Trial Court abused its discretion by finding for the Respondent."

This court should set aside a judgment on the ground that it is against the weight of the evidence only when this court has a firm belief that the judgment is wrong. Goodnight v. Curry, 618 S.W.2d 278, 279 (Mo.App.1981). "Weight of the evidence" means its weight in probative value, not the quantity or amount of evidence. Id. The weight of evidence is not determined by mathematics, but on its effect in inducing belief. Id.

On appellate review of a case tried without a jury, "[d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses." Rule 73.01(c)(2).

Verla Eshleman died testate, leaving most of her estate to her four children. In accordance with her will, two of her children, Jimmy M. Eshleman and Jerry L. Eshleman, were appointed by the Probate Division of the Circuit Court of Lawrence County as personal representatives to administer her estate.

Plaintiff testified that he was contacted by the "children" of Mrs. Eshleman to auction assets of her estate. The assets which were to be sold consisted of personal property and two tracts of real estate, one located in Marionville and the other near Aurora. Two auctions were set, one on each tract. Personal property was also sold at the auction near Aurora.

The Marionville tract was sold on October 3, 1988. Plaintiff received a commission on that sale. The fifty-five acre tract near Aurora was presented for sale on October 1, 1988. Kay Eshleman, Jimmy M. Eshleman's wife, was the highest bidder, at $120,000, for it. The personal representatives have refused to pay plaintiff a commission for his efforts in connection with that tract, resulting in plaintiff's claim.

Jerry L. Eshleman testified that the heirs of the estate wanted a member of the family to purchase the real estate near Aurora; that plaintiff was so informed and agreed that he would not receive a commission if that occurred. Jerry L. Eshleman said that initially the personal representatives did not intend to have the fifty-five acres near Aurora listed for sale...

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23 cases
  • Marriage of Myers, In re, 17810
    • United States
    • Missouri Court of Appeals
    • December 10, 1992
    ..."Due regard is given to the trial court's determination on the credibility of witnesses. Rule 73.01(c)(2); Looney [v. Estate of Eshleman, 783 S.W.2d 164 (Mo.App.1990) ], 783 S.W.2d at 165. The trial judge is in a better position than this court to determine the credibility of the parties, t......
  • Silver Dollar City, Inc. v. Kitsmiller Const. Co., Inc.
    • United States
    • Missouri Court of Appeals
    • September 25, 1996
    ...amount of evidence. The weight of evidence is not determined by mathematics, but on its effect in inducing belief. Looney v. Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). ...
  • Kerr v. Jennings
    • United States
    • Missouri Court of Appeals
    • August 30, 1994
    ...Murphy, 536 S.W.2d at 32. " 'Weight of the evidence' means its weight in probative value, not its quantity. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). 'The weight of evidence is not determined by mathematics, but on its effect in inducing belief.' Id." Lewis, 808 S.W.2......
  • Marriage of Gardner, In re, 19091
    • United States
    • Missouri Court of Appeals
    • November 8, 1994
    ...Due regard is given to the trial court's determination on the credibility of witnesses. Rule 73.01(c)(2); Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, ch......
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