Opinion
No. 76381
FILED: August 29, 2000
Appeal from the Circuit Court of St. Louis City, Honorable Robert H. Dierker, Jr.
Ted F. Frapolli, Frapolli, Garnholz, Garnholz Ricci, L.C. 1200 South Big Bend Boulevard, St. Louis, MO 63117, for appellant.
Randall S. Parker, 1015 Locust St., Suite 1100, St. Louis, MO 63101, for respondent.
Before: Clifford H. Ahrens, P.J., William H. Crandall, Jr., J., James R. Dowd, J.,
ORDER
Lourdes Henares-Levy appeals the trial court's judgment on Counts I, II, and V of her amended petition. We have reviewed the briefs and the record on appeal and conclude that the judgment of the circuit court is supported by substantial evidence and is not against the weight of the evidence. An opinion reciting the detailed facts and restating the principles of law would have no precedential value; but the parties have been furnished with a memorandum for their information, setting forth the facts and reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Dr. Henares-Levy (appellant) filed suit in the Circuit Court of St. Louis County in January of 1998, claiming money due on loans she allegedly made to Ms. Montano (respondent) in connection with (1) the "Happy Taco" restaurant they opened together, (2) various personal expenses and (3) an "investment opportunity" that went bad when federal law enforcement officials confiscated the money. Montano denied that any of these transactions were loans, and counterclaimed for monies allegedly owed her for a "management fee."
After a bench trial, the trial court made the following findings. First, the court found there was no agreement that Montano would repay fifty percent of Henares-Levy's capital contributions to the Happy Taco, nor an agreement that Montano would be paid a management fee. Rather, the court found that any payment for excess capital contributions or services performed would come out of the earnings of the restaurant. Since the restaurant never became profitable, the conditions precedent to the mutual obligations were never satisfied. The court therefore found that Montano was not obligated to repay Henares-Levy for her capital contributions and that Montano was not entitled to a management fee. Second, the court concluded the monies Henares-Levy gave to Montano for personal expenses were gifts. Third, the court found Henares-Levy's claim to repayment of the $20,000 investment money was unsupported by an unconditional promise to repay. Moreover, the court held that even if it were to characterize these transactions as loans, any claim on them was barred by the five year statute of limitations for unwritten promises to pay money.
Appellant, Henares-Levy raises two points on appeal. In her first point she maintains that the trial court erred in finding that the monies she put into the "Happy Taco" and gave to Montano were not loans. She claims this was "against the weight of the evidence." In her second point she maintains that the trial court erred in holding that the statute of limitations bars recovery for any loans made prior to 1993.
"On appeal of a court-tried case, the appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo.banc 1984). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Appellate courts will set aside a decree or judgment on the ground that it is "against the weight of the evidence" only with caution and a firm belief that the decree or judgment is wrong. Id. Conflicts in evidence are for the trial court to resolve. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo.banc 1980). When the trial court sits as the trier of fact, it may believe all, part, or none of the testimony of any witness. Id. Accordingly, we must treat the evidence in a light most favorable to the judgment of the trial court and defer to its judgment on all matters where the evidence is in conflict. Id.
Henares-Levy argues that she falls within an exception to the general rule that courts of appeal must give considerable deference to the trial judge's findings of fact. She cites Southgate Bank and Trust Co. v. May, 696 S.W.2d 515 (Mo.App. 1985) for the proposition that where the facts are derived from pleadings, stipulations, exhibits and depositions, no deference is to be accorded the trial court. Henares-Levy argues that since some of the testimony received at trial was in the form of deposition, the appellate court is in as good a position to assess that evidence as the trial court.
While there are exceptions to the rule enunciated in Murphy v. Carron, they are narrowly confined to circumstances where the sufficiency of the evidence is not an issue on appeal, St. Charles County Convention and Sports Facilities Auth. v. Mydler, 950 S.W.2d 668, 670 (Mo.App.E.D. (1997), or where uncontested evidence is in the form of pleadings, stipulations, exhibits and depositions. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. 1979) (en banc). Appellant invites us to carve out an additional exception for cases where testimony on contested issues is by deposition. We decline the invitation. Even were we to cabin off the deposition testimony for a special de novo review, we would still have to integrate our assessment of the deposition testimony with the trial court's assessment of the live witnesses. Because only the trial court is in the position of evaluating the depositions in light of what the live testimony revealed, any reversal on the basis of our review of depositions would have the effect of making our entire review of the trial court's findings of credibility de novo. This exceeds our authority. Where the trial court's ruling on matters of credibility are determined on the basis of both live testimony and depositions, the courts of appeal must sustain that ruling unless there is no substantial evidence to support it, or the court has come to the firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
The trial transcript reveals substantial conflict in the evidence concerning the parties' transactions. Because their agreements, if any, were not in writing, the court had to base its decision on the conflicting testimony of the parties and what light could be shed by witnesses called by the parties.
First, there was substantial evidence in the record to support the trial court's finding that the sums Henares-Levy advanced for the business did not include loans to Montano. The trial court found that the testimony of the parties concerning their business agreement was not particularly credible. Henares-Levy v. Montano, No. 984-0008, at 5 (Apr. 28, 1999). It then grounded its decision on the testimony of their accountant, Ben Hurley. Dr. Henares-Levy admitted during cross-examination that Mr. Hurley was the accountant for her, the Happy Taco and Ms. Montano, and was familiar with the financial relationship between her and Montano. Mr. Hurley testified that when Henares-Levy and Montano first hired him as their accountant they both told him that the arrangement they had worked out was that Henares-Levy would put up the cash and Montano would invest her services.
Second, there was substantial evidence to support the trial court's finding that the money Henares-Levy gave to Montano for personal expenses amounted to gifts. Both parties testified that they were involved in a romantic relationship, lived together and shared household expenses. None of the alleged loan agreements were in writing. The evidence, on the whole, supports the trial court's finding that Henares-Levy's payment of various bills was part of a course of conduct of sharing personal expenses.
Finally, there is substantial evidence in the record to support the trial judge's conclusion that the lost "investment" money was not a loan.
Because there is substantial evidence in the record to support the trial court's conclusion that none of the transactions at issue were loans, it is unnecessary to address appellant's claim that they were not barred by the statute of limitations.
Judgment affirmed pursuant to Rule 84.16(b).