Trimble v. Pracna

• Citation: 167 S.W.3d 706
• Decision Date: 02 August 2005
• Docket Number: No. SC 86269.,SC 86269.
• Parties: Karen F. TRIMBLE, d/b/a A-Advanced Bail Bonds, Respondent/Cross-Appellant, v. Timmi Ann PRACNA, Appellant/Cross-Respondent.
• Court: United States State Supreme Court of Missouri

Page 706

167 S.W.3d 706

Karen F. TRIMBLE, d/b/a A-Advanced Bail Bonds, Respondent/Cross-Appellant, v. Timmi Ann PRACNA, Appellant/Cross-Respondent.

No. SC 86269.

Supreme Court of Missouri, En Banc.

July 12, 2005.

Rehearing Denied August 2, 2005.

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Charles B. Cowherd, Springfield, MO, for Appellant/Cross-Respondent.

R. Lynn Myers and Richard D. Crites, Springfield, MO, for Respondent/Cross-Appellant.

MARY R. RUSSELL, Judge.

This appeal and cross-appeal follow a judgment awarding damages for breach of a bail bond contract and fraud on the retrial of a suit brought by bail bondsman Karen Trimble ("Bondsman") against Treveillian Heartfelt¹ ("Accused") and his former girlfriend, Timmi Ann Pracna ("Girlfriend"). After opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is affirmed in part, as modified, and reversed in part.

Girlfriend contracted with Bondsman to obtain bail bonds to secure Accused's release from jail. Girlfriend paid a $7,500 bond fee for the initial two bonds totaling $75,000 and pledged real estate as collateral. As Accused was leaving the jail, he was rearrested on a new fugitive warrant stemming from Idaho parole violations. The bond for this charge was set at $250,000, the contract was amended, and Bondsman posted this bond as well. Ultimately, Accused failed to appear at a court hearing for which the bonds were posted and significant efforts were made to procure his presence in court. Bondsman brought suit to recover under the bond contract.

This case has a chaotic and complex history, including two trials and two appeals before reaching this Court. The procedural history through the first appeal can be found in Trimble v. Pracna, 51 S.W.3d 481 (Mo.App.2001) (hereinafter Trimble I). In Trimble I, the court of appeals remanded the case for a second trial to determine Bondsman's contract damages and to consider her fraud claims.

I. Second Trial

On remand, the trial court allowed the parties to amend their pleadings, but directed a verdict on liability on Bondsman's new breach of contract claim based on the holding in Trimble I.

Bondsman submitted two verdict directors to the jury—one for damages for breach of contract and the other for damages for fraud. The jury returned verdicts in Bondsman's favor, awarding her damages of $144,420 for breach of contract, $28,900 for fraud, and $146,000 as punitive damages on the fraud count. Bondsman was awarded $48,380.70 for attorney fees for the breach of contract claim, expenses of $12,324.67 on that claim, and $5,804.55 for costs. The trial court found that Girlfriend was "entitled to a set-off of $58,500 for amounts already paid" and awarded a credit for the set-off amount. In sum, Bondsman was awarded a total judgment of $152,429.92² on her breach of contract claim and $174,900³ on her fraud claim. Both parties now appeal.

II. Did this case present the issue of election of inconsistent theories?

Before addressing the parties' points, this Court addresses the issue of election of inconsistent theories of recovery. The issue of election of inconsistent theories has caused confusion in this case and others.⁴ For that reason, this Court reiterates the doctrine as last discussed in Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506-07 (Mo. banc 1993).

In Whittom, this Court outlined the distinction between the doctrine requiring election of remedies and the doctrine requiring election of inconsistent theories of recovery. Id. It was noted that the election of remedies doctrine is a doctrine of estoppel, basically providing that where a party has the right to pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to final judgment, that party cannot thereafter pursue another and inconsistent remedy. Id. at 506. Entirely distinct from the election of remedies is the election of inconsistent theories of recovery. Id. at 506-07. Under this doctrine, a party must elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the trier of fact. Id. If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is error to submit them together. Id. at 507. The determination of when two theories are inconsistent is heavily dependent upon the facts of the case. Id. Theories are inconsistent and require an election only if, in all circumstances, one theory factually disproves the other. Id.

There was no issue of inconsistent theories of recovery in this case. A party who fraudulently induces another to contract and then also refuses to perform the contract commits two separate wrongs, so that the same transaction gives rise to distinct claims that may be pursued to satisfaction consecutively. Davis v. Cleary Bldg. Corp., 143 S.W.3d 659, 669 (Mo.App.2004).

In Davis, the court of appeals found that the plaintiffs' claims for breach of contract and fraudulent misrepresentation were not inconsistent legal theories and, as such, did not require election of remedies or election of recovery. Id. at 669-70. The court stated that the plaintiffs could pursue all of their claims because actual damages for breach of contract and benefit-of-the-bargain damages for fraud were not inconsistent remedies in that they both rest on affirmance of the contract. Id. at 669.

Bondsman could sue Girlfriend for breach of the bargain damages resulting from fraud in inducing her to contract and also recover additional damages, if any, resulting from breach of contract, as both rest on affirmance of the contract. A plaintiff is only entitled to be made whole once, however, and the election of theories doctrines are intended to prevent a plaintiff from recovering more than one full recovery for the same harm. Id. at 670. If a plaintiff's damages for breach of contract and for fraud are the same, then the damage awards merge. Id. Bondsman submitted theories of recovery that were not factually inconsistent, but instead merely included damages that could have overlapped.

The parties disagree as to whether the jury was properly instructed so as to prevent the award of overlapping damages on the breach of contract and fraud claims. This Court need not resolve this issue because, as more fully discussed below, Bondsman failed to prove her fraud claim and is not entitled to recover any of the damages awarded on that claim.

In sum, under the facts of this case, Bondsman was not precluded from submitting both a claim for breach of contract and a claim for fraud so long as she did not seek nor receive double recovery for the same damages. The trial court did not err in submitting both the contract claim and the fraud claim to the jury based on the doctrine of inconsistent theories of recovery. The claims were not inconsistent theories requiring election, and the issue of whether the damages for each claim were kept sufficiently separate and distinct need not be reached.

Having found there was no error in submitting the fraud claim on the grounds of inconsistent theories, the parties' points of error are now addressed.

III. Should the trial court have granted the motion for judgment notwithstanding the verdict concerning the fraud claim?

Girlfriend argues that the trial court erred in denying her motion for judgment notwithstanding the verdict on Bondsman's fraud claim because Bondsman failed to prove each essential element of her fraud claim.

A case may not be submitted, and a motion for judgment notwithstanding the verdict should be granted, unless each and every fact essential to liability is predicated upon legal and substantial evidence. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). Determining whether evidence is substantial and whether the inferences drawn are reasonable are questions of law. Bd. of Educ. of City of St. Louis v. Elam, 70 S.W.3d 448, 452 (Mo.App.2000).

There are nine essential elements of fraud,⁵ and failure to establish any one is fatal to recovery. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988). Girlfriend argues that Bondsman failed to prove the essential elements of reasonable reliance, materiality, and damages.

Reliance is an essential element of fraud, and Bondsman could not recover for fraud unless she established that she relied on the truth of the representations claimed to be false. Empire Gas Corp. v. Small's LP Gas Co., 637 S.W.2d 239, 243 (Mo.App.1982). The reliance must be proven to be reasonable. Brown v. Bennett, 136 S.W.3d 552, 555 (Mo.App.2004). Bondsman can recover for fraud only if she was justified, under the circumstances of this case, in relying upon the misrepresentations that were the basis of her fraud claim. Hanson v. Acceptance Fin. Co., Inc., 270 S.W.2d 143, 149 (Mo.App.1954).

Bondsman alleged that she relied on the following statements made by Girlfriend in deciding to post Accused's bonds: Accused's only nickname or alias was "Chance"; Girlfriend had an annual income of more than $100,000; Accused had always appeared for his past court appearances; and Accused was not in violation of his parole by being in Missouri.

Bondsman asserts that her testimony provided substantial evidence that she relied on these representations. The record reveals, however, that Bondsman's testimony was contradictory and did not show that she reasonably relied on Girlfriend's statements in deciding to post the bonds.

Girlfriend indicated on the bond application that Accused was on probation or parole, but Bondsman did not contact his parole officer before posting the bonds. Bondsman testified that before she posted bond for Accused, the assistant prosecutor spoke with her to ask that she not post Accused's bonds because he "had a rap sheet as long as [she] was tall" and was likely to flee.

Bondsman, who...