Pepsi Midamerica v. Harris, 28206.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtRobert S. Barney
Citation232 S.W.3d 648
PartiesPEPSI MIDAMERICA, Appellant, v. Jason S. HARRIS, Respondent.
Docket NumberNo. 28206.,28206.
Decision Date07 September 2007
232 S.W.3d 648
Jason S. HARRIS, Respondent.
No. 28206.
Missouri Court of Appeals, Southern District, Division Two.
September 7, 2007.

[232 S.W.3d 650]

Daniel P. Finch and Andrew D. O'Brien, Cape Girardeau, for Appellant.

No brief filed for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Pepsi Midamerica ("Appellant") appeals the trial court's judgment in favor of Jason S. Harris ("Respondent") on Appellant's petition for breach of contract.1 Appellant alleges four points of trial court error in this appeal. We affirm the judgment of the trial court.

Viewing the evidence in the light most favorable to the trial court's judgment, Barrows v. Firstar Bank, 103 S.W.3d 386, 390 (Mo.App.2003), the record reveals that Appellant filed its petition for breach of contract against Respondent on August 7, 2006. In its petition Appellant alleged Respondent "entered into a written employment agreement, whereby [Respondent] was employed by [Appellant]." Appellant also asserted that in addition to the employment agreement, the parties entered into a "Driver/Sales Training Employment Agreement" ("the Agreement")2 which

232 S.W.3d 651

provided that Respondent agreed to remain employed with Appellant for a period of two years in exchange for truck driving and sales training valued at $2,500.00. Appellant maintained Respondent quit his employment less than three months later and, accordingly, it was entitled to damages pursuant to the Agreement in the amount of $2,243.15.

A bench trial was held on November 7, 2006. At trial, Brian House ("Mr.House"), vice-president of sales for Appellant, testified that Respondent was hired on April 17, 2006, at which time he signed the Agreement and entered the truck driving and sales training program. Mr. House testified as to his interpretation of the Agreement. He related that it provided that if an employee received his Commercial Driver's License ("CDL") through the company and then terminated his employment within a two year period, the employee would be "responsible for repayment of a proportionate share of [Appellant's] $2500 training investment." Mr. House stated that the $2500.00 was "[p]rorated over the two years' time."

Mr. House also stated that the truck driving and sales training program offered by Appellant is one of only two in-house training programs in Missouri to provide truck driving training. He testified that Appellant has "an on-site trainer" named "Mike," who is certified by the state as a CDL instructor. He related that the on-site trainer had to receive special training in Jefferson City in order to be certified and there were certain fees and costs associated with having an on-site trainer. Mr. House also testified that Appellant provided its employees with "a training book . . . that the State offers just to get the written part of their CDL, or they can pick it up at the state office. . . ." He related that once the employee obtained a written manual Appellant would permit the employee to ride along with a licensed CDL driver, "[t]hen basically at the end of the time period, we test [the driver]." He testified that if the driver "passes, then [Appellant] can issue a certificate to go get a CDL." Mr. House stated Appellant would also give a driver access to a $100,000.00 truck and trailer to practice with in its large parking lot. Mr. House also related that during the training period the driver, who he said provided no benefit to Appellant, would be paid "while. . . . learning to become a route salesman." Mr. House testified that private driving schools charge between $3,000.00 and $7,000.00 for CDL training and that Appellant gives the training to its employees for free in exchange for the promise to work for Appellant for two years.

Additionally, Mr. House testified Respondent received his CDL while employed by Appellant. He related that Respondent then terminated his employment with Appellant on July 1, 2006, at which time he failed to honor the Agreement to maintain employment with Appellant. Mr. House stated that he felt Appellant fulfilled all of its obligations to Respondent.

Respondent, on the other hand, testified he signed the Agreement, but that at the time of signing he was told that "[he]

232 S.W.3d 652

would receive extensive CDL training." He stated that "[w]hen [he] asked [Appellant] for a CDL book, [he] was told [he] had to go get [his] own." As for Mr. House's assertion that he was given an opportunity to ride with someone in a truck in order to aid his training, Respondent testified that he rode along with a driver named Claude Armstrong ("Mr.Armstrong"), who had only had his CDL for two months, and "didn't know how to drive, really." Respondent testified that Mr. Armstrong "didn't know how to run the handheld [of the truck]. So, [Respondent] was put with him so [Mr. Armstrong] could drive and [Respondent] could run the handheld." Respondent also related he worked the route with Mr. Armstrong when he was riding along with him during his training period. He stated he "delivered the sodas just like [Mr. Armstrong] did. [He] took [the sodas] in, put them on the shelf. [He] worked every day just like [Mr. Armstrong]. [He] just couldn't drive."

Respondent, likewise, testified he was told that if he wanted to do his training he would "have to come and do it on [his] own time, at [his] own expense, but [Appellant] would provide a truck. But there was no trainer there. [He] just went and drove by [him]self, nobody was there to show [him] how to do it or nothing." He related he was allowed to drive eighteen miles in one of Appellant's trucks during his training period with Mr. Armstrong and that he practiced in Appellant's parking lot for approximately two hours on one occasion. He testified that he "didn't receive any kind of CDL training. You know, to study the CDL book, [he] had to do it on [his] own time." He stated the CDL book he got from the state "tells you what you have to take on the test. But there was nobody there to show [him] how to do those tests. [He] had to figure those out on [his] own." Respondent stated he taught himself "to parallel park a truck, how to back the truck without using the mirror . . . all on [his] own."

Respondent also related he would not get home from work in the evening "until 8:00 or 8:30 . . . so it didn't leave [him] much time to study. After a week and a half of only being there, [he] was asked to take [his] test . . . with no time to study, no time to drive." Respondent testified he passed the CDL test and received his CDL four weeks after beginning his employment with Appellant. He stated he felt that he got his CDL "[o]n [his] own time and [his] own dollar" and based on his prior knowledge of driving farm trucks.

The trial court entered its Judgment on November 7, 2006, in which it found that Appellant "failed to provide [Respondent] driver or sales training at a value of $2,500 pursuant to the [Agreement] entered into between the parties on April 17[,] 2006[,] and finds the issues on [Appellant's] Petition in favor of [Respondent] and against [Appellant]." The trial court then assessed costs against Appellant. This appeal by Appellant followed.

The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).3 The court of appeals will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. "A judgment should be set aside as being against the weight of the evidence only with caution and with a firm belief that the judgment is wrong." Jerry

232 S.W.3d 653

Bennett Masonry, Inc. v. Crossland Const. Co., Inc., 171 S.W.3d 81, 88 (Mo.App.2005). "The trial court's judgment is presumed valid and the burden is on the appellant to demonstrate its incorrectness." Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App. 1998). "In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment." In re Marriage of Harris, 154 S.W.3d 456, 457 (Mo.App.2005). Furthermore, "`[t]rial judges are better able than appellate courts to assess the credibility of the parties and other intangibles that are not completely revealed by the record on appeal.'" Bowles v. All Counties Inv. Corp., 46 S.W.3d 636, 638 (Mo.App.2001) (quoting Kerr v. Louderback, 35 S.W.3d 511, 513 (Mo.App.2001)). "`All fact issues upon which no findings are made shall be considered as having been found in accordance with the result reached.'" Bowles, 46 S.W.3d at 639 (quoting Schaefer, 965 S.W.2d at 956). This Court does not defer to the trial court's determinations of law. City of Kansas City v. Hon, 972 S.W.2d 407, 409 (Mo.App.1998).

Here, no request for findings of fact or conclusions of law was made by the...

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