Cook v. Martin

71 S.W.3d 677, 2002 Mo. App. LEXIS 662, 2002 WL 483480
CourtMissouri Court of Appeals
DecidedApril 2, 2002
DocketNo. WD 59471
StatusPublished
Cited by5 cases

This text of 71 S.W.3d 677 (Cook v. Martin) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Martin, 71 S.W.3d 677, 2002 Mo. App. LEXIS 662, 2002 WL 483480 (Mo. Ct. App. 2002).

Opinion

RONALD R. HOLLIGER, Judge.

John Cook d/b/a CCP Online (hereinafter “Cook”) appeals from the trial court’s judgment in favor of Respondents Edward Martin, Martin Jones and ASDE, Inc. (collectively, “ASDE”) regarding Cook’s petition for equitable accounting. Finding that Cook was entitled to an accounting, we reverse the judgment.

[678]*678FACTUAL AND PROCEDURAL BACKGROUND

Cook and ASDE, Inc., entered into a business arrangement to provide internet services in the town of Maryville, Missouri. Cook provided the hardware to service the customers, while ASDE opened an office in Maryville and acted as the contact with the individual customers. It is not clear from the briefs when the two businesses began this relationship, though Cook alleges that the relationship spanned “several years.” Shortly after Cook and ASDE began providing services to Maryville residents, Cook successfully bid for a state contract to provide Internet access for students at Northwestern Missouri State University. Students as well as other customers would sign up at ASDE’s office in Maryville and payments were made at that office.

Maryville customers could receive Internet service through the Cook/ASDE arrangement1 through a variety of plans. Plans were first divided by the number of hours of Internet access available to the customer per month. Each plan was assigned a monthly charge, with a higher charge for those plans providing the customer a greater number of available hours per month. Within each plan, the customer could receive a discount on the base rate by paying for six or twelve months of service in advance. Under the arrangement between Cook and ASDE, all customer payments were to be received by ASDE. ASDE would retain a processing fee for all new customers, and the remaining funds would be deposited by ASDE into a local bank account owned by Cook. Cook would then apply the funds to equipment costs and other necessary expenses associated with the service. Cook and ASDE would then divide the residual funds equally.

ASDE would also advise Cook of each subscriber’s user ID, password, and rate plan (this varied depending on number of hours of service per month). ASDE would also advise Cook as to when each customer’s service was to begin and when it would be terminated. Cook was initially advised of whether a customer had prepaid for service or was billed for each month’s service, but ASDE apparently ceased providing that information to Cook at some point.

In October 1998, ASDE apparently entered into an arrangement with a competing service provider, Earthlink, whereby Earthlink would also be providing Internet connectivity to customers through ASDE. It is unclear whether ASDE offered the Earthlink service alongside that provided by Cook or as a replacement for Cook’s services.

Cook alleges that ASDE withheld information regarding their customers. He claims that ASDE stopped providing the customer “signup sheets” sometime in 1997. Cook also suggests that ASDE used proxy servers2 to conceal customers from Cook.

On July 30,1999, ASDE sent an email to Cook terminating their business arrangement. After that date, ASDE has claimed all customers under the Cook ASDE arrangement as its own, and has operated a [679]*679new service known as “ASDE.net.” Cook alleged that he still had equipment and phone lines housed in ASDE’s offices at the time ASDE broke off the relationship.

Cook subsequently brought an action3 for accounting, asking that the trial court order ASDE “to deliver a complete accounting, all records, statements, and other documents in support thereof, a complete customer list including addresses for verification, an award of all funds not accounted for, an award of attorney fees, costs, and any such other relief the court deems just and reasonable.” Cook’s claim was also joined with general claims for damages, tortious interference with a business relationship, and replevin. These latter claims were either dismissed or settled by Cook prior to the conclusion of trial. At the time the case was submitted, the only remaining claim before the trial court was Cook’s request for an accounting.

Cook alleged in his petition that he was entitled to an accounting because he had been in a fiduciary relationship with ASDE as ASDE was Cook’s agent. Cook did not explicitly allege the existence of a partnership in his petition. However, he attempted to argue at trial that Cook and ASDE had entered into a partnership and, as partners owed a fiduciary duty to each other. ASDE objected to this change in Cook’s position from the petition. Several objections were made by Cook when he attempted through testimony to characterize the relationship as a partnership so as to invoke the statutory right to an accounting under the Missouri Partnership Act, §§ 358.010, et seq., RSMo. At one point ASDE’s objection was overruled, but a slightly different objection, at another point but in a related context, was sustained.

In its judgment, the trial court held that a fiduciary relationship existed, but did not make any findings that Cook and ASDE had entered into a partnership. Nor did the court indicate why it believed that a fiduciary relationship existed. Despite the existence of a fiduciary relationship, the trial court found that Cook was not entitled to an accounting on the grounds that Cook had access to the same customer information as ASDE. The trial court, accordingly, entered judgment in favor of ASDE regarding Cook’s petition for accounting. Cook appeals.

DISCUSSION

Before beginning our review of Cook’s point on appeal, it would be helpful to start by outlining the elements of equitable accounting actions. To establish a right to an equitable accounting, the plaintiff must prove four elements. Ballesteros v. Johnson, 812 S.W.2d 217, 220 (Mo.App.1991). First, the plaintiff must show a need for discovery. Id. Second, the nature of the accounts must be complicated. Id. Third, the plaintiff must prove that a fiduciary duty existed between the parties. Id. Lastly, the plaintiff must establish the lack of any adequate remedy at law. Id.

[680]*680Cook raises a single point on appeal. He contends that the trial court committed error in holding that Cook failed to prove the first element of his claim. He specifically contests the trial court’s “finding that there was a free flow of information between the parties prior to the termination of the business relationship that allowed both parties to have access to the same basic information on various customer accounts.” He argues that this finding was against the weight of the evidence and contrary to existing law. Contending that he was “improperly excluded from information on the accounts that was exclusively in the hands of [ASDE],” Cook argues that the trial court’s findings were erroneous.

As this was a bench-tried case, our standard of review is supplied by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Legacy Homes P’ship v. Gen. Elec. Co., 50 S.W.3d 346, 353 (Mo.App.2001).

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Bluebook (online)
71 S.W.3d 677, 2002 Mo. App. LEXIS 662, 2002 WL 483480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-martin-moctapp-2002.