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)|
|Trial Court Judge(s)|
|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|