IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
ERICKA J. SAUVAIN, AMY LEIGH ) SAUVAIN, by Next Friend, ERICKA J. ) SAUVAIN, and BONNIE S. HUGHES, ) ) Respondents, ) WD76356 ) v. ) OPINION FILED: ) April 22, 2014 ) ACCEPTANCE INDEMNITY ) INSURANCE COMPANY, ) ) Appellant. )
Appeal from the Circuit Court of Clay County, Missouri The Honorable Anthony Rex Gabbert, Judge
Before Division I: Cynthia L. Martin, Presiding Judge, and Mark D. Pfeiffer and Karen King Mitchell, Judges
Acceptance Indemnity Insurance Company (“Acceptance”) appeals from the judgment of
the Circuit Court of Clay County, Missouri (“trial court”), after a bench trial, in favor of Ericka J.
Sauvain, Amy Leigh Sauvain, and Bonnie S. Hughes (collectively, “Plaintiffs”) and against
Acceptance on Plaintiffs’ equitable garnishment claim. In its sole point on appeal, Acceptance
argues:
The trial court erred in entering judgment in favor of Plaintiffs and against [Acceptance] because its finding that the parties did not intend a transfer of ownership at the time of the collision was against the weight of the evidence and not supported by substantial evidence in that the evidence presented at trial supported a conclusion that the parties did in fact intend to transfer ownership of the [Vehicle] on March 24, 2005.
(Emphasis added.)1
We affirm.
Factual and Procedural History2
This is not the first appeal of this equitable garnishment action. We previously
considered appeal of the trial court‟s ruling that granted summary judgment to Plaintiffs in
Sauvain v. Acceptance Indemnity Insurance Co., 339 S.W.3d 555 (Mo. App. W.D. 2011)
(“Sauvain I”). In Sauvain I, we concluded that the undisputed facts of this case were not
sufficient for either party to be entitled to summary judgment; hence, we remanded the case for a
trial. It is in this vein that we review the factual and procedural history of this case.
In a separate underlying lawsuit, Plaintiffs brought suit alleging that David Bowman, Jr.‟s
(“Bowman Jr.”) negligence caused a head-on vehicular collision with a vehicle operated by John
Sauvain, III (“Sauvain”) in Barry County, Missouri, on April 30, 2005. Bowman Jr. was driving
a 1998 Ford Contour (“the Vehicle”) at the time of the collision, and Sauvain was driving a 1998
Ford Escort. Bonnie Hughes (“Hughes”) was a passenger in Sauvain‟s car. Sauvain died from
the injuries he sustained in the collision, and Hughes suffered serious physical injuries.
1 As our ruling today explains, it is immaterial whether the evidence “supported a conclusion” contrary to the trial court‟s conclusion. That is not the test for reversing this bench-tried case. Instead, Acceptance needed to demonstrate that the totality of the evidence on vehicle ownership only supported one conclusion—the conclusion Acceptance argued. We mention this to underscore the fatal defect in the rationale of the claimed trial court error in this appeal. Additionally, as we explain in our ruling today, “against-the-weight-of-the-evidence” challenges are not the same as “not-supported-by-substantial-evidence” challenges; hence, pursuant to Rule 84.04, these separate and distinct challenges should have been separated into two distinct points relied on. State v. Brightman, 388 S.W.3d 192, 196 (Mo. App. W.D. 2012). „“Generally, multifarious points preserve nothing for appellate review and are ordinarily subject to dismissal.‟” Id. (quoting State v. Agee, 350 S.W.3d 83, 97 (Mo. App. S.D. 2011)). That said, we have exercised our discretion to examine the substance of Acceptance‟s claimed errors. 2 On appeal after a bench trial, an appellate court views the facts in the light most favorable to the trial court‟s judgment. Rissler v. Heinzler, 316 S.W.3d 533, 535 n.1 (Mo. App. W.D. 2010).
2 Prior to the collision, David H. Bowman, Sr. (“Bowman Sr.”) took his son, Bowman Jr.,
to a used car dealer for the purpose of looking for a car that Bowman Sr. wanted to purchase for
Bowman Jr. as a wedding present. The Bowmans went together to USA Cars, Inc. (“USA
Cars”), located in Wylie, Texas, which was near where the Bowmans were living at that time.
Eventually, on March 24, 2005, Bowman Sr. signed a document provided by USA Cars
to purchase the Vehicle from USA Cars for $4,257. No representative for USA Cars signed the
purchase agreement, and the agreement expressly stated that the signature of both parties was
required before there would be a binding contract between the parties. Notwithstanding this fact,
Bowman Sr. paid the sales price in full, was given a receipt and the car keys by USA Cars, and
Bowman Sr. drove the Vehicle off the lot on that day. However, no title was provided by USA
Cars to Bowman Sr. at that time, nor by the time of the fatal collision, which occurred some five
weeks later (even though USA Cars had promised that title would be provided within one week).
Bowman Sr. did not consider the sale of the Vehicle complete until title was provided by USA
Cars and expected a full refund if USA Cars was unable to provide clean title to the Vehicle.
During this period of “title limbo,” Bowman Sr. contacted USA Cars both to question the
whereabouts of title to the Vehicle and also to seek the permission of USA Cars to drive the
Vehicle on USA Cars‟ temporary tags into the state of Missouri. In response, instead of
indicating to Bowman Sr. that he, not USA Cars, owned the Vehicle, a representative of USA
Cars stated that it was “still working on the title, but it shouldn‟t be a problem if you go out of
state. You‟re covered.” The fatal car wreck involving the Vehicle ensued on April 30, 2005.
The accident report prepared by the Missouri State Highway Patrol trooper in connection
with the April 30 fatal car wreck listed the owner of the Vehicle as USA Cars. USA Cars did not
3 release its lien on the Vehicle until May 23, 2005, and did not provide the title to the Vehicle to
Bowman Sr. until June 3 or 4, 2005, well after the April car wreck.
Acceptance issued USA Cars a “garage” insurance policy (“USA Policy” or “the Policy”)
that insured USA Cars from March 16, 2005, to March 16, 2006. Pursuant to the Policy‟s terms,
Acceptance agreed to insure USA Cars from loss on certain “autos” that were “owned” by USA
Cars. For the purposes of this case, the Vehicle was one such “auto,” to the extent it was
“owned” by USA Cars as of the date of the April car wreck.
In the separate underlying bench trial against Bowman Jr. in Clay County Circuit Court,
the circuit court found Bowman Jr. liable and entered a judgment against him and in favor of
Plaintiffs. Specifically, Sauvain‟s heirs were awarded $2,000,000, and Hughes was awarded
$4,000,000. Prior to the trial in the underlying lawsuit, Plaintiffs entered into a settlement
agreement pursuant to section 537.065, RSMo, with Bowman Jr., and in addition, Bowman Jr.‟s
personal auto liability insurer, USAA, agreed to pay its policy limits of $50,000 on behalf of
Bowman Jr.
Plaintiffs brought the subject equitable garnishment action in the Clay County Circuit
Court against Acceptance for the purpose of garnishing insurance proceeds they claimed were to
be provided under the terms of the USA Policy. The gravamen of the lawsuit was that this was
an additional insurance policy that covered the Vehicle (and hence provided liability coverage up
to the policy limits of $100,000 to the Vehicle‟s permissive driver) at the time of the wreck.
Plaintiffs alleged that the USA Policy covered the Vehicle because the automobile “was
titled to and owned by USA Cars” on the date of the accident. Plaintiffs sought to have the
insurance proceeds provided for in the Policy applied to the partial satisfaction of the underlying
4 $6,000,000 judgment against Bowman Jr., the permissive driver of the Vehicle at the time of the
wreck.
After the current action was filed, Plaintiffs and Acceptance filed opposing summary
judgment motions as to the Policy coverage on the day of the accident. The trial court issued a
judgment that granted Plaintiffs‟ motion for summary judgment and denied Acceptance‟s motion
for summary judgment. Acceptance appealed both rulings to this court.
In Sauvain I, we concluded that the trial court erred in granting Plaintiffs‟ motion for
summary judgment because the trial court erroneously focused on whether the purchase
agreement was fully executed, and not on the relevant test under Texas law—whether the
uncontroverted facts indicated that the parties intended to effect the transfer of ownership at the
time Bowman Sr. took possession of the Vehicle prior to the April car wreck. We also
concluded that the trial court did not err in denying Acceptance‟s motion for summary judgment
because there were disputed issues as to the parties‟ intent to effect the sale of the Vehicle prior
to the April car wreck. Of relevance to the action that was ultimately taken by the fact-finder in
this case upon remand, we said in Sauvain I:
Here, it was uncontroverted that Bowman, Sr. paid USA Cars the full sales price of $4,257 for the [Vehicle]. Furthermore, it was uncontroverted that USA Cars delivered the vehicle to Bowman, Sr. and that he took possession and control of the vehicle. However, it was also uncontroverted on summary judgment that pursuant to the express terms of the purchase contract used by USA Cars, in order to have a binding contract, the contract had to be signed by both parties and that the purchase agreement in this case was not in fact signed by USA Cars.3 It is also an uncontroverted fact that Bowman, Sr. called USA Cars to ask permission for Bowman, Jr. to leave the state in the car. Taken together, these facts create a disputed factual issue as to the intent of the parties to effect the sale under [Texas law].
3 We clarified that we were not suggesting that Texas law required that both parties sign an agreement to demonstrate an intent to transfer ownership, but noted that “when the form purchase agreement expressly requires the signatures of both parties to create a binding contract, the absence of one signature is certainly relevant in evaluating whether the parties intended to transfer ownership.” Sauvain v. Acceptance Indem. Ins. Co., 339 S.W.3d 555, 567 n.13 (Mo. App. W.D. 2011).
5 Sauvain I, 339 S.W.3d at 567-68.
We concluded:
Ultimately, it is for the fact-finder, and not the trial court [on summary judgment motion], to determine whether Bowman Sr. and USA Cars intended “to effect the sale” based on the facts in this case.
Id. at 569 (emphasis added).
Upon remand, the parties appeared before the trial court on December 6, 2012. The
parties waived their right to trial by jury and presented the case to the trial court for trial on the
merits. After the introduction of evidence and the arguments of counsel, the case was submitted
to the trial court for decision.
On January 21, 2013, the trial court entered its judgment, concluding that the collision,
which was the subject of the underlying action, was covered by USA Cars‟ Policy with
Acceptance and that Bowman Jr. was an insured under the Policy. The trial court held “that the
weight of the evidence in this matter supports the conclusion that the parties did not intend a
transfer of ownership at the time of the collision. . . . Because the weight of the evidence
supports Plaintiffs‟ claim for equitable garnishment, this Court holds that Plaintiffs are entitled to
judgment against Defendant Acceptance . . . on their claim for equitable garnishment” in the
amount of the policy limits of $100,000.
Acceptance appeals the trial court‟s judgment.
Standard of Review
On appeal of a bench-tried case, the trial court‟s judgment will be affirmed unless there is
no substantial evidence to support it, it is against the weight of the evidence, or it erroneously
declares or applies the law. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012); Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “A claim that there is no substantial evidence to
6 support the judgment or that the judgment is against the weight of the evidence necessarily
involves review of the trial court‟s factual determinations.” Pearson, 367 S.W.3d at 43. An
appellate court “will overturn a trial court‟s judgment under these fact-based standards of review
only when the court has a firm belief that the judgment is wrong.” Id.
In reviewing questions of fact, the appellate court defers to the trial court‟s assessment of
the evidence if any facts relevant to an issue are contested. Id. at 44. A party can contest the
evidence in many ways, including by arguing the meaning of the evidence. Id. When the
evidence is contested, we defer to the trial court on factual issues; a trial court is free to
disbelieve any, all, or none of the evidence, and the appellate court‟s role is not to re-evaluate the
evidence through its own perspective. Id. Accordingly, we review the evidence in a light most
favorable to the judgment, accept the evidence favorable to the judgment as true, and disregard
any contradictory evidence. HCI Investors, LLC v. Fox, 412 S.W.3d 424, 429 (Mo. App. W.D.
2013).
Analysis
In its sole point relied on, Acceptance asserts that the trial court erred in entering
judgment in favor of Plaintiffs and against Acceptance because the trial court‟s finding that the
parties did not intend a transfer of ownership at the time of the collision was against the weight
of the evidence and not supported by substantial evidence. Specifically, Acceptance contends
that the evidence presented at trial supported a conclusion that the parties did intend to transfer
ownership of the Vehicle on March 24, 2005.
We begin our analysis by noting that “[t]he trial court‟s judgment is presumed valid[,]
and the burden is on the appellant to demonstrate its incorrectness.” Houston v. Crider, 317
S.W.3d 178, 186 (Mo. App. S.D. 2010) (internal quotation omitted). The two bases of appellate
7 review raised by Acceptance to challenge the evidentiary basis of the trial court‟s judgment have
distinct analytical frameworks.4 Id.
In bringing a not-supported-by-substantial-evidence challenge, Acceptance must: (1)
identify a challenged factual proposition necessary to sustain the judgment; (2) identify all of the
favorable evidence supporting that position; and (3) demonstrate why that supporting evidence,
when considered with the reasonable inferences drawn therefrom, is so lacking in probative
value that the trier of fact could not reasonably believe the proposition. Id. at 187. “Substantial
evidence is that which, if true, has probative force upon the issues, and from which the trier of
fact[ ] can reasonably decide the case.” Id. at 186 (internal quotation omitted). “[A]ny citation
to or reliance upon evidence and inferences contrary to the judgment is irrelevant and immaterial
to an appellant‟s point and argument challenging a factual proposition necessary to sustain the
judgment as being not supported by substantial evidence.” Id.
On the other hand, in bringing an against-the-weight-of-the-evidence challenge,
Acceptance must: (1) identify a challenged factual proposition necessary to sustain the
judgment; (2) identify all of the favorable evidence supporting that position; (3) identify contrary
evidence, subject to the trial court‟s credibility determinations, explicit or implicit; and (4) prove
in light of the whole record that the supporting evidence, when considered along with the
reasonable inferences drawn therefrom, is so lacking in probative value that the trier of fact could 4 As the court noted in Houston v. Crider, 317 S.W.3d 178, 187 n.9 (Mo. App. S.D. 2010), when confronted with a “not-supported-by-substantial-evidence” challenge and an “against-the-weight-of-the-evidence” challenge in the same point relied on:
Because each challenge requires differing views of the evidence and how that evidence relates to the evidentiary support for the challenged proposition, best practice would dictate that each challenge should be asserted in separate points relied on. Separating the two challenges in this manner assists an appellant in presenting a clear, cogent, and concise argument for each relying only upon the view of the evidence relevant to that particular challenge. It would also eliminate the natural tendency, which we observe on a regular basis when these challenges are combined in one point, to rely upon and argue evidence and inferences contrary to the proposition in attempting to demonstrate that it is not supported by substantial evidence, when such evidence and inferences are only relevant and material to an against-the-weight-of-the-evidence challenge.
8 not reasonably believe the proposition. Id. at 187. See also Riley v. City of Liberty, 404 S.W.3d
434, 440 (Mo. App. W.D. 2013). “[W]eight of the evidence refers to weight in probative value,
not quantity or the amount of evidence. The weight of evidence is not determined by
mathematics, but on its effect in inducing belief.” Houston, 317 S.W.3d at 186 (internal
quotation omitted).
[A]n against-the-weight-of-the-evidence challenge presupposes the threshold issue of the existence of substantial evidence supporting a proposition necessary to sustain a judgment, but, nevertheless, challenges the probative value of that evidence to induce belief in that proposition when viewed in the context of the entirety of the evidence before the trier of fact.
Id. “[W]here the resolution of conflicting testimony is required to determine the merits of an
against-the-weight-of-the-evidence argument, we defer to the trial court‟s credibility
determinations in the same manner as in the resolution of a not-supported-by-substantial-
evidence argument.” Id.
At trial, the following evidence supported the trial court‟s judgment declaring that there
was no intent to effect a sale of the Vehicle prior to the April car wreck and that ownership of the
Vehicle did not transfer from USA Cars to Bowman Sr. as of the date of the April car wreck
involving Bowman Jr.‟s use of the Vehicle:
The purchase order for the Vehicle signed by Bowman Sr. states that “[t]his order shall
not become binding until accepted by dealer or his authorized representative.”
The purchase order for the Vehicle signed by Bowman Sr. was not signed by an
authorized representative of USA Cars.
Bowman Sr. did not have to purchase temporary tags when he paid for the Vehicle; when
Bowman Sr. drove the Vehicle off USA Cars‟ lot on March 24, 2005, the Vehicle had
tags; USA Cars told Bowman Sr. to use its tags.
9 USA Cars did not give Bowman Sr. the certificate of title for the Vehicle before Bowman
Sr. drove the Vehicle off USA Cars‟ lot on March 24, 2005. USA Cars told Bowman that
it would have the title for him the following week.5
When Bowman Sr. wrote his check to USA Cars, he intended to receive a title to the
Vehicle.
Subsequent to March 24, 2005, Bowman Sr. called USA Cars on numerous occasions to
request the title.
Bowman Jr. recalled Bowman Sr. calling USA Cars to tell it that Bowman Jr. needed to
take the Vehicle out of state and that Bowman Sr. needed to have the title. Bowman Jr.
stated that USA Cars said it was “still working on the title, but it shouldn‟t be a problem
if you go out of state. You‟re covered.”
After March 24, 2005, and before receiving title to the Vehicle, Bowman Sr. felt that
USA Cars had an obligation to repair the front end of the Vehicle, and if the Vehicle‟s
front end was not repaired, he would take it back and demand a refund.
Bowman Sr. assumed that USA Cars would give him his money back if it had never been
able to get the title to him.
Bowman Sr. did not receive title to the Vehicle prior to the collision.
The accident report prepared by the Missouri State Highway Patrol trooper in connection
with the April 30, 2005 accident lists the owner of the Vehicle driven by Bowman Jr. as
USA Cars.
5 Acceptance argues that facts relating to title of the Vehicle are immaterial to a determination of whether or not the parties intended to transfer ownership of the Vehicle to Bowman Sr. on March 24, 2005; rather, the ownership of the Vehicle is determined by whether Bowman Sr. had the right to possession and the power to control the Vehicle, and whether the parties had the intent to effect the sale. Plaintiffs contend that they are not arguing that transfer of title is determinative of ownership; rather, they are arguing that the facts regarding USA Cars‟ promise to transfer title and the failure to do so are relevant evidence pertaining to whether there was intent to effect a transfer of ownership of the Vehicle.
10 The title to the Vehicle that Bowman Sr. finally received was dated April 8, 2005, and
listed USA Cars as the owner of the Vehicle.
USA Cars did not release its lien on the Vehicle until May 23, 2005.
Bowman Sr. did not receive the certificate of title for the Vehicle from USA Cars until
June 3 or 4, 2005.
On appeal, Acceptance correctly identified the disputed factual proposition: whether
Bowman Sr. and USA Cars intended to effect a sale of the Vehicle on the date of the transaction.
Acceptance has identified evidence that is both favorable and contrary to the resolution of the
disputed factual proposition by the trial court. However, where Acceptance falls short in its
argument is: (1) when it refuses to recognize the reasonable inferences from the evidence
favorable to the challenged finding by the trial court; and (2) when it fails to resolve conflicts in
the evidence in accordance with the trial court‟s credibility determinations, whether explicit or
implicit.
For example, Acceptance concedes that the purchase agreement document that USA Cars
prepared and used in the transaction with Bowman Sr. requires that both parties must sign the
agreement before the agreement was binding, and USA Cars chose to use that language and
required that language in this transaction. While Acceptance argues that Texas law did not
require such acts to “effect a sale” in the state of Texas, Acceptance ignores that there is nothing
in Texas law that prohibits parties from adding this requirement to their agreement and, at
minimum, the decision of USA Cars to place this language into the agreement is relevant to the
ultimate issue that the fact-finder was called upon to decide. Undaunted, Acceptance argues that
the trial court should have disregarded the language in the written agreement and accepted as
credible the testimony of USA Cars‟ corporate representative who testified that sometimes USA
11 Cars enforces the signature requirement of the agreement, and sometimes it doesn‟t, depending
on how much of the purchase price is paid at the time the agreement is signed (at least by one of
the parties). Aside from the fact that Acceptance offered no evidence that Bowman Sr. was told
that the signature requirement of the agreement was unenforceable, this ignores the trial court‟s
implicit credibility determination that the language of the agreement meant precisely what it said,
not what a corporate representative said it really meant after a lawsuit was filed.
As another example, Acceptance argues in its appellate brief that the real reason title was
not presented to Bowman Sr. on March 24, 2005, or within one week as promised, or at least
prior to the fatal car wreck five weeks later, is, as the USA Cars representative surmises,
“probably because the [Vehicle] was never titled in the name of USA Cars, but rather the title
still remained in the name of the person from whom USA Cars received the vehicle.” From this
probability, Acceptance argues that there simply could be no other reasonable explanation for
why an automobile dealer would need some two and a half months to convey title. Aside from
Acceptance‟s failure to recognize the reality that this testimony was offered by the USA Cars
corporate representative as a probability as opposed to an actuality of what happened (and one
would assume that USA Cars would have possessed the information necessary to testify as to
such actuality), this ignores the evidence that Bowman Sr. did not consider the sale of the vehicle
complete without the title and Bowman Sr. made repeated requests to USA Cars about the title
because he was concerned about the completion of the transaction since USA Cars was not
delivering title as promised and many weeks were passing in the interim. This ignores the
evidence that Bowman Sr. called USA Cars to express frustration about the continuing lack of
title to the Vehicle and to ask permission to drive the vehicle outside the state of Texas with USA
Cars‟ plates, since Bowman Sr. could not register the Vehicle as its owner without the title. This
12 ignores the evidence that USA Cars told Bowman Sr., in response, that it was “still working on
the title,” but “you‟re covered” under USA Cars‟ tags. This ignores the evidence that USA Cars
did not even release its lien on the Vehicle until May 2005 while it claims it sold the Vehicle for
full purchase price in March 2005 and claims the sale was completed at that time. This ignores
the evidence that the highway patrol report reflects, at the time of the wreck in April 2005, that
USA Cars was the owner of the Vehicle. When these examples of evidence in the record are
considered along with the reasonable inferences from the evidence, one reasonable explanation
for why title was not delivered to Bowman Sr. until well after the April wreck is that USA Cars
did not intend to effect the sale until after it could complete its obligation of conveying clear title
to the Vehicle, which did not occur prior to the April wreck.
The trial court, as fact-finder, expressly found that Bowman Sr. and USA Cars did not
intend a transfer of ownership of the Vehicle as of the date of the April car wreck. While we
agree with Acceptance that there was substantial evidence in the record that would have
supported “a conclusion” to the contrary, we do not believe that the evidence supported only the
conclusion argued by Acceptance. Instead, accepting as true the foregoing evidence and
inferences from it that are favorable to the judgment, we conclude the trial court‟s judgment is
supported by substantial evidence and is not against the great weight of the evidence.
Conclusion
The trial court‟s judgment is affirmed.
Mark D. Pfeiffer, Judge
Cynthia L. Martin, Presiding Judge, and Karen King Mitchell, Judge, concur.