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Discover Bank v Smith

Case No. SD30117 (MO Ct. App., S. Dist., Oct. 29, 2010)

Kenneth A. Smith (“Appellant”) appeals the judgment of the trial court which found in favor of Discover Bank (“Respondent”) on Respondent’s “PETITION ON A CREDIT CARD.” Following a bench trial, the trial court determined Appellant owed Respondent the amount of $14,289.59 for the outstanding balance on a credit card issued by Respondent and also determined Respondent was entitled to attorney’s fees in the amount of $2,143.44 in addition to court costs. Appellant brings two points on appeal. In his first point relied on, Appellant takes issue with the trial court’s ruling on the admission of two exhibits which Appellant contends failed to comply with the business records exception to the hearsay rule, particularly section 490.680. Appellant’s second point maintains there was no evidence of any contractual relationship between the parties, hence there was insufficient evidence to prove Appellant was legally liable to Respondent for any amount of money. We determine Point I to be dispositive of this appeal and we reverse and remand.

The judgment in a court tried case such as the present one will be upheld unless it is not based on substantial evidence, goes against the weight of the evidence, or is based on an erroneous declaration or application of the law. Rule 84.13(d); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Citibank (South Dakota), N.A. v. Mincks, 135 S.W.3d 545, 548-49 (Mo.App. 2004). “Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness.” Id. “Since neither party requested that the trial court prepare findings of fact, ‘all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.’” Id. (quoting Rule 73.01(c)).

In his first point relied on, Appellant asserts the trial court erred in admitting Exhibits 1 and 2 because Respondent “failed to satisfy the foundational requirements of [section] 490.680 . . .” because there was no evidence presented concerning “(1) the mode of preparation [of the documents]; or (2) whether the documents were made in the regular course of business, at or near the time of the act, condition or event.”

Section 490.680 sets out that
[a] record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
“When the [aforementioned] enumerated statutory requirements are met, ‘the statute invests the record with a presumptive verity, and so excepts them from the hearsay rule.’” Davolt v. Highland, 119 S.W.3d 118, 134 (Mo.App. 2003) (quoting Piva v. Gen. Am. Life Ins. Co., 647 S.W.2d 866, 877 (Mo.App. 1983)).
 

 

Judge(s): Robert S. Barney
Jurisdiction: Missouri Court of Appeals, Southern District
Related Categories: Civil Procedure , Finance / Banking
 
Circuit Court Judge(s)
Robert Barney
Don Burrell
Gary Lynch

 
Trial Court Judge(s)
John Waters

 
Appellant Lawyer(s) Appellant Law Firm(s)
Jonathan Davis Turner Reid Duncan Loomer & Patton PC
Joseph Winget Turner Reid Duncan Loomer & Patton PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Rick Milone Cohen McNeile & Pappas PC

 

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vs. ) no. sd30117 the judgment in a court tried case such as the present one will be appellant's counsel: yes or no? then requested to voir dire the witness. during the voir dire of ms. evans, the 2 all statutory references are to rsmo 2000. to investigate and respond to regulatory complaints against the company as far appellant's counsel: did you gather-- matter of estate of white, 665 s.w.2d 67, 69 (mo.app. 1984), in she related she was "continually reviewing the records, continually reviewing foundation deficiencies can frequently be remedied.'" id. with this in mind, of ms. evans. appellant maintained ms. evans was not the custodian of the regular course of business, and whether they were made "at or near the regular course of business in compliance with the statute." white, 665 s.w.2d under these circumstances "we believe the cause must be reversed and s.w.3d at 341. confused is because there had been some pleadings filed on behalf prevented the merits of the case from being fully developed . . ." when it ruled "when the [aforementioned] enumerated statutory requirements are met, `the presumption of verity must be laid to qualify the records for accordingly, we need only examine whether there was evidence that the [c]learly lack of foundation with respect to this witness for the trustworthiness, and hence justify admission. contrary testimony concerning who the custodian of records is. the trial court then overruled the objection and admitted exhibit 2 into made in the regular course of business, at or near the time of the time of the act, condition or event." "where, as here, testimony is challenged admitting exhibits 1 and 2 because respondent "failed to satisfy the ms. evans: i don't know. truthfully, i don't know that. contained copies of certain payment stubs and certain checks paid on course of business." medicine shoppe intern., inc. v. mehra, 882 s.w.2d the admission of two exhibits1 which appellant contends failed to comply with they initiate the collection calls. they initiate the customer service upheld unless it is not based on substantial evidence, goes against the weight via immediate notations on the account themselves." when asked how she times of their preparations and the fact the records were really made in the the discretionary determination by the trial court of their trustworthiness.'" 709, 713 (mo.app. 1994). further, or (2) whether the documents were made in the regular course of business, at appellant's counsel: did you gather the records in exhibit 7 robert s. barney, presiding judge discover bank, ) remanded for a new trial." id. records in these exhibits as a matter of law. while the seriatim recitals of the whether the requirements of [section] 490.680 for admission are met, the trial admission. ) october 29, 2010 (quoting piva v. gen. am. life ins. co., 647 s.w.2d 866, 877 (mo.app. 1983)). "albeit it is said that a trial court possesses wide discretion in determining section 490.680. kestner v. jakobe, 412 s.w.2d 205, 209 (mo.app. 1967). is the presumptive verity of routine recording of business prepared at or near the time they're dated, she didn't collect these testifies to its identity and the mode of its preparation, and if it was estate of newman, 58 s.w.3d 640, 646 (mo.app. 2001). "a trial court is prepared the supportive memoranda or notes in the regular course of his exhibit 2 into evidence. appellant's counsel then objected as follows: the policies and procedures of the company . . . ." again, respondent's counsel 1 exhibit 1 contained unsigned copies of the credit card agreement, an admission of evidence without the necessity of identifying, locating, and appellant's counsel: [w]as exhibit [1] . . . documents that ms. evans: [respondent] would be the custodian of records. appellant's counsel: they are the custodian of records for "we review the evidence and all reasonable inferences in the light most interest to ensure accuracy to allow reliance on the records in the his claim, in a situation where the proof seems to be available, the case should statute invests the record with a presumptive verity, and so excepts them from the court: i'm sorry. i didn't hear her answer. by mistake or inadvertence, fails to produce sufficient evidence at trial to prove records in exhibits 1 and 2 were "made . . . at or near the time of the act, did not appear at trial, but was represented by counsel. the only testimony 410 (mo.app. 1999)); see s.i.e. v. j.m., 199 s.w.3d 808, 819 (mo.app. 2006). kenneth a. smith ("appellant") appeals the judgment of the trial court that these records were prepared at or near the time they're dated . . . ." now, appellant's account. regular conduct of business. of the evidence, or is based on an erroneous declaration or application of the reflected are made in the regular course of business at or the hearsay rule.'" davolt v. highland, 119 s.w.3d 118, 134 (mo.app. 2003) following colloquy occurred: she has not testified sufficient to satisfy the business records appellant's counsel: your honor, this witness has no act, condition or event, and if, in the opinion of the court, the the court: the objection is overruled. exhibit [1] is admitted. evidence. appellant offered no evidence. 2006). "`the bottom line regarding the admissibility of the business records is "petition on a credit card." following a bench trial, the trial court ms. evans: these are records that i can gather. business nor did the record reflect the time of preparation of these documents). company is adhering to those." she related she knew respondent's filing honorable john s. waters, judge business records are assumed to be accurate because they reflect ) evidence presented concerning "(1) the mode of preparation [of the documents]; at 69. the trial court erred as a matter of law in admitting exhibits 1 and 2 side of the business. transactions recorded. the foundation which warrants the and financial documents where, inter alia, there was no evidence the taxpayer v. nickels, 817 s.w.2d 632, 637 (mo.app. 1991) (holding the testimony of an 3 all rule references are to missouri court rules (2009). presented by respondent was that of lisa evans ("ms. evans"), who appeared are made shall be considered as having been found in accordance with the before any deference be accorded the ruling of the court nisi." id.; see nickels information and mode and time of preparation indicate prerequisites encompassed in section 490.680 may appear at first blush to be lynch, j. concurs personal knowledge of the documents in exhibit [1]. there's been testimony is for the trial court, which is free to believe none, part, or all of the and remand. "`it is particularly important that where an inadequate foundation has been laid "that these records were prepared at or near the time" they are dated. be competent evidence if the custodian or other qualified witness 10 ms. evans testified she was "a staff associate;" that she had been working for a company with a vague reference as to some of its files being maintained by for review, the objection must be specific, and the point raised on appeal must of preparation of the documents at issue, whether the documents were made in laid and it's inappropriate for her--or it's inappropriate for [respondent] to get nevertheless, is grounded upon reason, verity and efficiency. as explained in is you don't know who that entity is; is that correct? determined respondent was entitled to attorney's fees in the amount of earmarks of reliability. until shown otherwise, the qualified files are all maintained within our company, either via microfiche systems or on the basis of sufficient foundation, the challenge is essentially one of evidence to prove appellant was legally liable to respondent for any amount of section 490.680." alberswerth v. alberswerth, 184 s.w.3d 81, 102 (mo.app. it is clear, then, that at trial appellant's argument was that exhibits 1 recognizing a business record as an exception to the hearsay rule burrell, j. concurs for admission of evidence that the objection made be specific as such dfs services? $2,143.44 in addition to court costs. appellant brings two points on appeal. appellant's counsel: and are they, in fact, the custodian of ) 5 2 transactions done on a regular basis at times close to the with that being said, we do note that it has been held that "[i]f a plaintiff, on appeal, appellant argues there was no foundation laid concerning the mode the judgment of the trial court is reversed. records for [respondent]? producing as witnesses the individuals who made each entry in the regular uniform business records as evidence law. the reason for admission of exhibit [1]. particularized requirements of section 490.680 applicable to the specific exception to hearsay. no evidence that these records were ms. evans: i-- custodian of records for [respondent]. your testimony here today ms. evans: yes, i do. centers and things like that. they initiate the collections efforts. * * * accountant was insufficient to lay a foundation for the admission of certain tax because a record is in writing and part of a financial transaction, it object . . . . [respondent], correct? in his first point relied on, appellant asserts the trial court erred in record, and the trial court is satisfied that the sources of result reached.'" id. (quoting rule 73.01(c)). the "bank part of the company for five years;" and that her duties are "simply kenneth a. smith, ) opinion filed: respondent's records and reiterated his argument that there was "[n]o evidence 2004). "credibility of the witnesses and the weight to be given to their records for [respondent] . . . . appellant's counsel: okay. well the reason i'm--i'm construing [section] 490.680 it has been observed that simply only a portion of the issues raised in appellant's point i were raised in his "ere proper admission of records under [section] 490.680 can be made, it is condition or event . . ." at issue. 490.680. in our review of the record, we estate of west v. moffatt, 32 s.w.3d 648, 653 (mo.app. 2000); see in re sources of information, method and time of preparation were such records were prepared at or near the time they're dated. no with the records." when counsel for respondent first moved to introduce appellant's attorneys: joseph p. winget & jonathan p. davis the exhibits could be received into evidence despite non-compliance with objection at trial, thus, the only issue we shall consider is the lack of evidence 9 outstanding balance on a credit card issued by respondent and also 8 after ms. evans testified that she had previously "accessed the[ ] some degree of confidence that the "trial court, by its erroneous view of the law, system "very well" and said she had "access" to that filing system. when asked you gathered or were they documents that were given to you by foundational requirements of [section] 490.680 . . ." because there was no appellant. ) on other grounds by george ward builders, inc. v. city of lee's summit, offered exhibit l and once more appellant offered the "[s]ame objection" and * * * davolt, 119 s.w.3d at 134 (quoting rouse co. of mo., inc. v. justin's, inc., exhibit 1 into evidence, the following objection was lodged by appellant's "immediate notation[ ]" on the accounts themselves does not satisfy the ms. evans: they are a servicing site of [respondent]. i'm taking a position--she testified that [she] was custodian of determined appellant owed respondent the amount of $14,289.59 for the appeal from the circuit court of christian county, missouri counsel: "objection, your honor. hearsay, lack of foundation of this witness. admissibility, and such challenges must be raised by a timely objection . . . ." ms. evans: no, i did not. stores, inc., 100 s.w.3d 809, 818 (mo. banc 2003). here, we can say with respondent, ) reasons i mentioned before. absolutely no testimony that these knowledge to authenticate these records, and for those reasons i a bench trial was held in the present matter on may 1, 2008. appellant judgment rendered by the trial court. murphy, 536 s.w.2d at 32. accordingly, which experience has demonstrated to be trustworthy. the focus custodian of records for respondent and had held that position for five years. afforded broad discretion in determining whether the parties complied with court prepare findings of fact, `all fact issues upon which no specific findings as the custodian of records for respondent. during her direct examination, id. thus, the "business records exception, [section] 490.680, allows the money. we determine point i to be dispositive of this appeal and we reverse respondent's attorney: rick milone she's not the custodian of records. the appropriate foundation has not been 3 * * * [w]here a business regularly employs electronic computer incumbent upon the party offering them to demonstrate the mode and the reversed and remanded for new trial. section 490.680 sets out that and 2 were hearsay and that a proper foundation was not laid for the testimony into evidence. point i has merit. there is insufficient evidence supporting the 4 of dfs services who represented to the court that they are the this rule is designed to facilitate the admission of documents record should reveal evidence of compliance with each requirement of the law [a] record of an act, condition or event, shall, insofar as relevant, [1]? yes or no? but talismanic formulas whose mere recitations at trial bring about a magical satisfy the requirement of section 490.680. indeed, merely testifying that one ) appellant's counsel: do you know who dfs services is? ms. evans: i know who discover financial services or dfs 6 find no evidence supporting the foregoing proposition, certainly not enough to king v. city of independence, 64 s.w.3d 335, 341 (mo.app. 2002), overruled citibank (south dakota), n.a. v. mincks, 135 s.w.3d 545, 548-49 (mo.app. the business records exception to the hearsay rule, particularly section in his first point relied on, appellant takes issue with the trial court's ruling on which found in favor of discover bank ("respondent") on respondent's be remanded to permit the introduction of additional evidence." in re estate 157 s.w.3d 644, 650-51 (mo.app. 2004). "`to preserve an objection to evidence acceptance of a document into evidence, each statutory requirement, records" contained in exhibit 2, counsel for respondent attempted to admit unsigned application for credit, and certain bills sent to appellant. exhibit 2 contractual relationship between the parties, hence there was insufficient services, llc is the servicing site of our business as far as the call law. rule 84.13(d);3 murphy v. carron, 536 s.w.2d 30, 32 (mo. banc 1976). is on the character of the records with consideration for certain reasonably near the time of the occurrences of the events they is not automatically qualified as a business record under the or near the time of the act, condition or event." as [its] collections and recovery policies and procedures to ensure that the as to justify its admission. 883 s.w.2d 525, 530 (mo.app. 1994)). ms. evans: by directly--i can directly gather these. favorable to the judgment and disregard all contrary evidence and inferences." equipment to enter and store its business records, printouts of the testimony--no evidence at all that she has the appropriate recognized the files associated with exhibit 1 she responded: "[j]ust familiarity records are admissible under section 490.680 if . . . the entries these records in through this witness." ms. evans then testified she was the documents, and for those reasons we would object to the appellant's other issues were not preserved for our review. see king, 64 where she got the files she brought with her to trial, ms. evans stated that "the is a custodian of records who has knowledge regarding the business records of be based upon the same theory.'" id. (quoting state v. vann, 7 s.w.3d 407, 490.680.2 appellant's second point maintains there was no evidence of any of mapes, 738 s.w.2d 853, 856 (mo. banc 1987); see kenney v. wal-mart entries systematically and routinely made by those with a self- testimony of any witness." id. "since neither party requested that the trial


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