Shaw v. Raymond, 27213.
| Decision Date | 18 July 2006 |
| Docket Number | No. 27213.,27213. |
| Citation | 196 S.W.3d 655 |
| Parties | Leon SHAW, Plaintiff-Appellant, v. Kevin RAYMOND, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Jason N. Shaffer, Springfield, MO, for appellant.
Richard D. Bender, Springfield, MO, for Respondent.
Bradley G. Kafka and Chad A. Horner, Gallop, Johnson & Neuman, L.C., St. Louis, MO, for Respondent Whelan Security Co.
Following a court trial, Appellant Leon Shaw ("Shaw") appeals the trial court's judgment rescinding a contract between him and Respondent Kevin Raymond ("Raymond") based upon Shaw's fraudulent misrepresentation. Holding that rescission is not an appropriate remedy in this case, we reverse and remand.
On October 6, 2003, Shaw and Raymond entered into a contract1 ("Contract") for Raymond's purchase from Shaw of a "FedEx Ground Route" and a FedEx "Local Pick-up Route" (collectively referred to as "the Routes"). The $45,000.00 contractual purchase price was payable in monthly payments of $1,389.47, beginning on November 15, 2003. After the Contract was executed, Shaw ceased to service the Routes and "stepped aside" from any effort to continue to service them. Raymond assumed the servicing of the Routes, entered into his own contract directly with FedEx, and, as of the time of trial, continued to service the Routes and receive payment for such service from FedEx. After making four monthly payments as required by the Contract, Raymond ceased making payments and requested from Shaw proof of his ownership of the FedEx Ground Route before making any further payments.
Shaw filed a one-count petition against Raymond in the Circuit Court of Greene County, Missouri seeking damages for breach of the Contract. Raymond filed an answer asserting the affirmative defense, among others, that the Contract was void for failure of consideration. Raymond also filed a counterclaim against Shaw seeking rescission of the Contract for fraudulent misrepresentation in count one, damages for fraudulent misrepresentation in count two, and damages for unjust enrichment in count three.
Following a bench trial, the trial court entered a judgment, finding as follows:
The Court further finds that [Shaw's] delegation of service and assignment of benefits combined with the promised forbearance of his effort to continue the contract routes, was sufficient consideration to support the [C]ontract of the parties.
The Court further finds that [Shaw's] representations to [Raymond] would cause a reasonable person to believe a proprietary interest owned by [Shaw] was being transferred to [Raymond]. [Shaw] did not disclose that [Raymond] was in effect, purchasing [Shaw's] willingness to step aside and permit [Raymond] to attempt to gain the route that [Shaw] has previously serviced.
The Court further finds that [Raymond] relied on these representations to his detriment. He was unable to obtain financing as a result of his not receiving a proprietary interest, thereby, [Raymond] did not receive what he bargained for.
Based upon these facts, the trial court entered judgment denying Shaw's petition for damages for breach of contract, denying Raymond's damage claims for unjust enrichment and fraudulent misrepresentation, noting that Raymond elected rescission as his remedy, and rescinding the Contract. Shaw appeals the rescission of the Contract, raising two points of trial court error.
Our review of this court-tried case is governed by the standard announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be affirmed 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. at 32. "The evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the trial court's judgment, and all contrary evidence and inferences must be disregarded." Davis v. Cleary Building Corp., 143 S.W.3d 659, 665 (Mo.App.2004) (citing Wildflower Cmty. Ass'n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App.2000)).
Shaw's first point asserts that the trial court erroneously declared and applied the law in that rescission was not a proper remedy available to the trial court, because Shaw had fully performed under the Contract, and Shaw could not be restored to his previous position that existed before entering into the Contract. Shaw's second point claims that the trial court's finding that Shaw misrepresented the nature and extent of the contract rights purchased by Raymond is against the weight of the evidence and is not supported by any substantial evidence, in that Raymond "did not show he suffered any damages from the alleged misrepresentation and [Raymond] was aware that Fed Ex exercised control over the routes being purchased." Because Raymond's remedy, whether for damages or rescission, is premised upon the existence of a fraudulent misrepresentation and Shaw's second point challenges the trial court's finding of such a fraudulent misrepresentation, we will address Shaw's points in reverse order.
The nine essential elements of fraud are:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity, or ignorance of its truth; (5) the speaker's intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of the falsity of the representation; (7) the hearer's reliance on the representation being true; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximately caused injury.
Trimble v. Pracna, 167 S.W.3d 706, 712 n. 5 (Mo. banc 2005). Failure to establish any one element is fatal to recovery. Id. at 712. Shaw's second point challenges the trial court's evidentiary support for the last two listed elements—Raymond's right to rely upon the representation and Raymond's consequent proximately caused injury.
Shaw first claims in his point relied on that Raymond did not have a right to rely upon his representation that he was "selling" Raymond a FedEx Ground Route because Raymond was "aware that Fed Ex exercised control over the routes being purchased," and the trial court's contrary finding is against the weight of the evidence and is not supported by substantial evidence. Our review of this part of Shaw's point is precluded for two reasons.2
In his brief, Shaw's argument in support of this point consists, in toto, of the following:
[Raymond] had full knowledge the routes were controlled by Fed Ex. He was a driver for [Shaw] on the routes he purchased. He had previous experience with Fed Ex because he previously owned a route prior to the purchase of [Shaw's] routes. [Raymond], on direct examination was questioned if understood the role played by Fed Ex.
Q. But certainly we understand you're relying on the actions of a third party in obtaining your payments?
A. Right. That would have been a given, I would guess.
How did [Shaw] misrepresent the nature and extent of his contract rights with Fed Ex when [Raymond] was aware he was relying on a third party, who was not a party to the contract, for payment? The truth is [Raymond] had sufficient knowledge and understanding as to what he was purchasing.
First, nowhere in his argument does Shaw address how the asserted facts demonstrate or relate in any way to his contention in his point relied on that the trial court's finding on this element is against the weight of the evidence or is not supported by substantial evidence. "When matters referenced as alleged error in a point relied on are not developed in the argument portion of a brief, they are deemed abandoned." Glidewell by Nabors v. S.C. Mgmt., Inc., 923 S.W.2d 940, 956 (Mo.App.1996).
Second, Shaw fails to cite any relevant authority supporting this argument or to explain why such authority is not available. "When an appellant fails to cite relevant authority or explain why none exists, the appellate court is justified in considering the points abandoned." State ex rel. Div. of Child Support Enforcement v. Hinojos, 993 S.W.2d 581, 583 (Mo.App. 1999).
For these two reasons, we decline to review this prong of Shaw's second point.
The other prong of Shaw's second point relied on challenges the evidentiary support for the trial court's finding that Raymond was damaged by Shaw's misrepresentation. Shaw argues that "[n]o evidence was provided by [Raymond] that he lost a single penny as a result of the alleged misrepresentation of [Shaw]" and that there were "[s]imply no damages whatsoever." Yet, in the very next sentence of his argument, Shaw contradicts these assertions stating: "The only discussion was [Raymond] was unable to obtain financing from a bank[.]" Raymond's testimony is substantial evidence and supports the trial court's specific finding that "[Raymond] was unable to obtain financing as a result of his not receiving a proprietary interest, thereby, [Raymond] did not receive what he bargained for[,]" i.e., he was injured.
Shaw fails to cite any authority as to how or why this finding regarding Raymond's injury as a result of the misrepresentation does not satisfy the damage element of a fraudulent misrepresentation. This court will not become an advocate for a party by researching and trying to find relevant authority to support a party's contention. "Authorities should be cited or discussed in the argument supporting the point relied on or a rationale must be advanced explaining why such authority is unavailable." Luft v. Schoenhoff, 935 S.W.2d 685, 687 (Mo.App.1996). This prong of Shaw's point two is denied.
Having considered both prongs of Shaw's second point challenging the evidentiary basis for the trial court's finding of the existence of a...
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