text:
    Dudley EVANS, Wanda Jackson, Thelma Dotson, Jewell Millard, Sally Ann Epperson, Shirley Evans, Ronnie Evans, Harold Evans, and Glen Evans, Plaintiffs-Respondents, v. Judy STIREWALT, Janet Webster, Vivian Cole, and Carl Evans, Defendants-Appellants.
    No. 26322.
    Missouri Court of Appeals, Southern District, Division Two.
    March 31, 2005.

      Timothy D. Richardson, Springfield, for appellants.
    Philip J. Metz, Joplin, for respondents.
   KENNETH W. SHRUM, Judge.

This is a will contest case. The trial court ruled Amy Carlisle (“Amy”) lacked testamentary capacity to make a will and, therefore, was deemed to have died intestate. The proponents of the will (“Defendants”) appeal. This court affirms.

STANDARD OF REVIEW

In a court-tried will contest case, appellate review is governed by Rule 84.13(d). We are obliged to affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Moyer v. Walker, 771 S.W.2d 363, 365[2] (Mo.App.1989) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976)).

As to issues of fact, we exercise the power to set aside a judgment because it is against the weight of the evidence “with caution” and only when we have a “firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32. “The mere existence of evidence from which another conclusion might have been reached is not enough to demonstrate that the holding of the trial court is contrary to the weight of the evidence.” Moyer, 771 S.W.2d at 365-66[3]. All evidentiary conflicts are for the trial court to resolve, and we take the facts according to the result reached. Id. In the same vein, we defer to the trial court’s determination of witness credibility and recognize that the court is free to accept or reject all, part, or none of the testimony presented. Christian Health Care v. Little, 145 S.W.3d 44, 48[5] (Mo.App.2004); Cockrum v. Cockrum, 550 S.W.2d 202, 205[2] (Mo.App.1977).

FACTS

The following summary of the evidence heeds the principles set out above. The challenged will was prepared by attorney James Fleischaker (“Fleischaker”). Amy, born January 31, 1914, signed the will August 10, 2000. At the time, Amy was widowed- — her husband of many years died May 1998 — and she had no children or other lineal descendants. Her nearest relatives were nephews, nieces, grandnephews, and grandnieces.

Amy’s August 10 will (the contested one) was the last of fourteen wills (plus one codicil) prepared for Amy between May 20, 1998, and August 10, 2000. All made differing dispositions of her property, including bequests and devises to persons other than her nephews, nieces, or their descendants. These documents and testimony from lawyers who prepared them showed Amy had a history (after her husband died) of befriending people, asking for their help, making provisions for such persons via wills and codicils, giving them powers of attorney, and then quickly turning against them and revoking the wills and other documents.

In April 2000, Amy fell in her garage and lay there for several hours before she was discovered. As a result, she was hospitalized. While there, Amy asked lawyer Tomie Kay Parsons (“Parsons”) to visit her. Parsons was a neighbor and visited in Amy’s home on occasion. She also drafted four wills and some powers of attorney for Amy between May 1998 to April 1999.

Parsons testified she had witnessed Amy’s “mental state” progressively deteriorate after 1998. Parsons’ visit with Amy at the hospital in April 2000 convinced her that Amy lacked testamentary capacity; consequently, she refused Amy’s request to prepare another will.

Once Amy left the hospital in April 2000, she consulted another lawyer, Max Glover (“Glover”), regarding will preparation. On May 9, 2000, Glover prepared a will for Amy that divided her estate equally between the Salvation Army and the American Heart Association. By the very next day, Amy had changed her mind and asked Glover to make a will with three money bequests ($5000 to niece Vivian Cole, $5000 to niece Judy Stirewalt and $5000 to a mentally handicapped acquaintance who lived in the neighborhood). Via the May 10 will, Amy left the rest of her estate to Richard Dooley, a neighbor who had recently begun doing chores for her.

One day later, Amy again contacted Fleischaker about another will. Through the May 11 will, she bequeathed $5000 to her mentally disabled friend, $5000 to niece Vivian Cole, and willed the remainder of her estate to Richard Dooley and his wife. Amy told Fleischaker she had arranged to buy a modular home for the Dooleys, the home was to be moved onto her property, and the Dooleys were then going to help take care of her. This will was signed May 18. As a part of this plan, Amy made a beneficiary deed to Dooley for her real estate on May 23, 2000.

In late May or early June 2000, Amy’s grandniece (Judith Brand) petitioned the probate court to have a guardian and conservator appointed for Amy. This was prompted by Amy’s May 18 will, her purchase of the modular home for the Doo-leys, and the preparations for moving the modular home onto Amy’s property.

The guardianship/conservatorship hearing was held July 26, 2000, and Amy was represented by Parsons (as Amy’s court-appointed attorney) and Fleischaker (hired by Amy). Amy testified as did the applicant and another family member, Janet Webster (another grandniece). Medical testimony came, in part, via a letter from Dr. Browning, Amy’s most recent family physician. Therein, he opined Amy’s dementia and cardiovascular disease incapacitated her to the point she needed a guardian and conservator.

Additionally, the court considered reports from Dr. Kory, a board-certified psychiatrist. He diagnosed Amy with “bipolar disorder, manic, with psychotic features” and concluded that a guardian and conservator should be appointed for Amy.

When Dr. Kory was later deposed in the will contest case, he provided additional details not found in his written report that was put in evidence at the probate court hearing. Specifically, he explained he first saw Amy in late May 1998 after her husband died. His initial diagnosis was “major depression with associated anxiety.” He started her on a regimen of antidepressant medications. Dr. Kory monitored Amy until October 1998, during which time he changed and adjusted her medications. Amy stopped seeing Dr. Kory.

When Amy finally returned to Dr. Kory’s office in early May 2000, he learned she was no longer taking the medications prescribed in 1998. Moreover, there were now family concerns that Amy might need a guardian and conservator. He again prescribed an antidepressant medication for Amy and scheduled another visit with her for June 27, 2000. He cautioned, however, that he anticipated “her compliance would be quit [sic] poor.”

When Amy returned to Dr. Kory on June 27, he observed unusual speech patterns and behavior. He concluded Amy was suffering from a “bipolar disorder, manic with psychotic features.” From his observations of Amy and a review of Amy’s recent conduct, Dr. Kory concluded Amy could not “understand the ordinary affairs of her life,” or “make decisions in her best interest,” or “intelligently appreciate who her heirs would be and what she should do with her finances concerning those people.” He opined that a manic stage (such as he saw in Amy on June 27) could go on for weeks, months, sometimes longer, and if she did not take the prescribed medication her symptoms would continue.

Although Dr. Kory did not know if Amy took the medication prescribed on June 27 as she never kept her next scheduled appointment, he had read the report of another psychiatrist who visited with Amy in December 2000. That record revealed (a) Amy was not on the medication Dr. Kory prescribed in June 2000 and (b) many of Amy’s symptoms in December 2000 were the same or worse than those Dr. Kory noted in June 2000.

At the conclusion of the July 26, 2000, probate hearing, the judge announced the appointment of two family members as guardians for Amy and appointed the public administrator as conservator. In doing so, he voiced concerns about how to handle the modular home and beneficiary deed issues, i.e., how to handle those transactions.

On August 4, 2000 (ten days after the probate court adjudication), Amy again met with Fleischaker to make another will. He made notes of her wishes and prepared a new will, and on August 10, 2000, Amy signed the will that underlies the filing of this will contest. Amy died March 23, 2002, whereon this suit was filed.

On May 17, 2004, the trial court ruled that Amy lacked testamentary capacity on the day she signed the subject will. Accordingly, the court set aside the will and declared that Amy died intestate. This appeal followed.

DISCUSSION AND DECISION

Defendants’ single point relied on urges reversal on the premise that Plaintiffs evidence was not sufficient to overcome the presumption that Amy had sufficient testamentary capacity to make a valid will.

In the argument part of their brief, Defendants point out that Amy was only placed under a limited guardianship and conservatorship. See note 11. Based on that, they insist the rule of law enunciated in Milum v. Marsh ex rel. Lacey, 53 S.W.3d 234 (Mo.App.2001) , attends here, and that the principles of Hugenel v. Estate of Keller, 867 S.W.2d 298 (Mo.App. 1993), are inapplicable. However, we need not decide whether the limited features of the guardianship and conservator-ship trigger the Milum rule or Hugenel rule. This is so because the trial court ruled that “Plaintiffs bore the burden” of proving Amy lacked testamentary capacity (thus implicitly adopting the Milum rationale), yet no one challenged that ruling on appeal. More than that, the court found Plaintiffs presented sufficient substantial evidence to overthrow the prima facie case and prove Amy lacked testamentary capacity. Because the record supports the latter conclusion, the outcome of this case would not be altered even if the trial court erred in its implicit conclusion of law, i.e., that the Milum rule governed here.

The standard for measuring testamentary capacity is whether, at the time the will was signed, the testator was of sound mind, understood the ordinary affairs of life, knew the nature and extent of his other property, knew the persons who were the natural objects of his other bounty, and appreciated the natural obligations to those persons. Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo.1967); Hugenel, 867 S.W.2d at 303[5]. The test is the testator’s ability “to comprehend and understand the ordinary, as distinguished from the intricate and complicated affairs of life.” Ahmann v. Elmore, 211 S.W.2d 480, 488-89 (Mo.1948) (quoting from Berkemeier v. Reller, 317 Mo. 614, 643, 296 S.W. 739, 752 (Mo.1927)). Evidence of a testator’s condition before or after the date he or she signed a will has no probative value on the issue of testamentary capacity unless it raises a reasonable inference as to the testator’s mental condition at the time he or she executed the document. Glover v. Bruce, 265 S.W.2d 346, 352 (Mo. 1954). It is equally well established that the will of a person previously placed under guardianship or conservatorship is not necessarily void. King v. Gilson, 191 Mo. 307, 90 S.W. 367, 371 (1905); Hugenel, 867 S.W.2d at 303-04.

The only direct evidence concerning Amy’s mental condition on the day the will was signed came from Fleischaker. Therefore, there are two questions that must be answered. First, did the evidence about Amy’s mental condition, both before and after the execution of the will, raise a reasonable inference as to her mental condition at the time she signed the will? Second, was such evidence sufficient to support the trial court’s finding that Amy lacked testamentary capacity on August 10, 2000? We answer both questions in the affirmative.

Earlier we recounted parts of Dr. Kory’s testimony. The record shows he was licensed in adult psychiatry, with sub-specialities of addiction and geriatric psychiatry. He testified that when he saw Amy on June 27, 2000, she lacked all four elements of testamentary capacity and diagnosed her as “bipolar, manic, with psychotic features.” He defined psychotic features as “someone who is delusional, suspicious, paranoid, hallucinating, essentially they have lost contact with reality.” When asked if on June 27 Amy lost track with reality, Dr. Kory answered, “Yes.” He also testified that Amy did not have a “rational thought process ... at that time.”

A significant part of Dr. Kory’s observations about Amy’s lack of testamentary capacity on June 27 was tied to her mental condition on August 10, 2000. This occurred largely through Fleischaker’s at-trial testimony. For instance, when Dr. Kory saw Amy on June 27 her speech was pressured and rapid with rambling conversation. She was loud, almost to the point of shouting. As he described it, “it was very difficult to get her to focus on anything.” When this description of Amy on June 27 was recounted to Fleischaker, he conceded “there were a lot of similarities between what [he] saw of her in August of 2000 and what Dr. Kory saw of her on June 27, 2000” as far as her unusual speech patterns and behavior.

Moreover, by August 10, Fleischaker had seen Dr. Kory’s narrative medical report, knew of Amy’s symptoms as observed by Dr. Kory, and knew he had treated her via medication. He also knew of Dr. Kory’s concern that Amy would not take the medication. Even so, Fleischaker made no effort to find out if Amy was taking the medicine prescribed and, if so, whether it helped. From the testimony thus recounted, the trial court reasonably could have inferred Amy was still out of contact with reality on August 10, 2000, she had either not taken her medication or it had not worked, and she still lacked testamentary capacity.

Additional evidence that supports the trial court’s decision includes Parson’s testimony about her observations of Amy in April 2000 and Parson’s refusal to prepare a will for Amy because she felt Amy lacked testamentary capacity and probably needed a guardian and conservator. Significantly, Parsons had known Amy for some time, knew her background, and could gauge the degree of deterioration in her mental condition.

In contrast, Fleischaker (who prepared Amy’s last two wills) did not know her before May 4, 2000. At trial, Fleischaker admitted that had he known all of the facts in May 2000, they would have sent up a “red flag” for him. He explained: “I don’t know if I would have drafted the will, but I would certainly have inquired into her reasons and suggested probably to her that she have a current medical examination before, or at least at the time, that we executed the will.” At trial, Fleischaker (via questions from Plaintiffs’ lawyer) recounted what he learned about Amy by August 2000. He was then asked, “Looking back on everything that’s been going on, at this point would you question whether ... Amy had testamentary capacity on August 10th, 2000?” Fleischaker answered, “I think that’s a legitimate question. I don’t, you know, I mean, I assume that’s why we’re here.” Later at trial, he stated he never believed it was a good idea for Amy to have control over her major assets. This part of Fleischaker’s testimony buttressed the permissible inference that the trial court drew, i.e., that Amy lacked testamentary capacity on August 10.

In their brief, Defendants point to evidence (including part of Fleischaker’s testimony), which if believed, would have supported a finding that Plaintiffs never overcame the prima facie case that Amy had testamentary capacity on August 10, 2000. The short answer to this argument is that the choice of what evidence to believe was the exclusive prerogative of the trial- judge and we are required to take the facts in accord with the result reached. Hugenel, 867 S.W.2d at 302; Moyer, 771 S.W.2d at 365-66.

Defendants also cite and rely on cases holding that evidence of sickness, old age, eccentric behavior, and other infirmities, taken alone without evidence of the severity of the conditions on the day the will was signed, will not support an inference of testamentary incapacity. See, e.g., Bruce, 265 S.W.2d at 352-53; Estate of Dean, 967 S.W.2d 219, 223 (Mo.App.1998). Certainly, those principles are sound, but, have no applicability here. This follows because Amy’s problems as described by various witnesses did not stand alone. As explained earlier, evidence of her testamentary incapacity on June 27, 2000, was connected to the day she signed the subject will. The connection came through parts of Fleischaker’s testimony. Accordingly, the following is apropos:

“[E]vidence of occurrences and circumstances prior to and closely approaching the time of the execution of the will, and shortly subsequent thereto, which tends to shed light on the issue of testamentary capacity and tends to show the condition of testator’s mind at the time of the execution of the will, is competent.”
“Although sickness, old age, and mere eccentricities are insufficient to nullify a will on the ground of mental incapacity, each may be taken into consideration with other facts in determining testa-menta^ capacity.”

Disbrow v. Boehmer, 711 S.W.2d 917, 924 (Mo.App.1986) (emphasis supplied).

It is evident the trial court relied on Fleischaker’s testimony and the inferences to be drawn from it when entering the judgment. Specifically, the court found that “[w]hen ... other evidence ... [is] coupled with the testimony of ... attorney ... Fleischaker, that [Amy’s] symptoms as found by Dr. Kory persisted on the date the Will was executed, August 10, 2000, it is clear [Amy] lacked the requisite capacity to execute a will.” Applying the standards recited herein to the facts of the present case in the light most favorable to Plaintiffs, we hold there was substantial evidence to support the trial court’s ruling that Amy lacked testamentary capacity when the will was signed on August 10, 2000. The judgment of the trial court is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . We refer to decedent Amy Carlisle as "Amy” in the hope it will aid the reader in following the facts. This court intends no disrespect.

      . Defendants are persons named as legatees or devisees under Amy’s last will. Plaintiffs are nephews and nieces of Amy not named in her will.

      . All rule references are to Supreme Court Rules (2004), unless otherwise stated.

      . Murphy interpreted the provision of former Rule 73.01(c). The requirements of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . Sometimes, Amy made provisions for longtime friends and neighbors. In other instances she made provisions for family members or charitable organizations.

      . This person was known as Tomie Parsons during the relevant period of 1998 through 2000. By the time the will contest was tried April 26, 2004, she was known as Tomie Kay Avant.

      .This was not the only time Glover prepared wills for Amy. He did so on June 24, 1998, May 20, 1999, January 26, 2000, and April 19, 2000.

      . Trees were cut and earth excavations were made on Amy’s property as a prelude to placing the modular home there.

      . He noted, inter alia, that Amy was "irrational,” had “disjointed and rambling” speech, and was so "angry and irritable” that it was "very difficult to interrupt her.”

      .Dr. Kory had earlier been furnished an extensive written history of Amy’s recent conduct via letter from Janice Tusinger, Jasper County public administrator.

      . Fleischaker requested a limited guardianship and conservatorship, which the court granted. In part, Amy was allowed to vote, but was not permitted to enter into commercial contracts. Moreover, she was to be maintained in the least restrictive environment necessary, i.e., her home.

      . In Milum, we held that the admission of a self-proving will to probate provides a prima facie case of testamentary capacity. Accordingly, once the proponent of a will makes a prima facie case by introducing the will into evidence, the burden shifts to the opposing party to produce substantial evidence to rebut the prima facie case. Id. at 238.

      .In Hugenel, the testator made a self-proving will per section 474.337, but he had previously been adjudged an insane person and there were later appointments of successor guardians for him as an incapacitated and disabled person. Id. at 305. Under those circumstances, we held there was a presumption of testamentary incapacity because of the testator’s continuing guardianship; the presumption was such that the defendant proponents of the will had "to carry the burden of proof on the issue of testamentary capacity throughout the trial.” Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donna R. WATT, Respondent, v. Randall L. ROBB; Timberland Properties, Inc., Appellants, Cosmo Designs, Inc.; Thistle Hill Development, Inc., Defendants.
    Nos. WD 63976, WD 64080.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Appeal from the Circuit Court of Clay County; David W. Russell, Judge.
    James D. Boggs, Kansas City, MO, for appellants.
    William E. Shull, Jr., Liberty, MO, for respondent.
    Jay W. Jensen, Gladstone, MO, for defendant.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Randall L. Robb and Timberland Properties, Inc., a company wholly owned by Robb, appeal from a judgment entered in the Circuit Court of Clay County dividing various property held jointly by Robb and his former girlfriend, Donna R. Watt, and declaring a lease entered into by Timberland and Watt void for lack of consideration. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Judge.

text:
    STATE of Missouri, Respondent, v. Lankford HAYNES, Appellant.
    No. WD 63887.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Amy Marie Bartholow, State Public Defender Office, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Evan Buchheim, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Lankford Haynes appeals from his conviction for felony resisting arrest, RSMo section 575.150 (2000), and thud degree assault of a law enforcement officer, RSMo section 565.083 (2000). In his sole point on appeal he attacks the resisting arrest conviction contending that the trial court plainly erred in submitting the issue to the jury in a disjunctive form when one of the prongs of the instruction was not supported by the evidence. Finding no manifest injustice we affirm.

On May 1, 2003, two police officers went to a Columbia residence for the purpose of arresting Langford Haynes on a charge of second-degree assault. A female opened the door and the officers immediately saw Haynes standing inside the residence wearing boxer shorts and a tee shirt. The female let the officers inside where they informed Haynes that they were looking for a suspect and asked him for identification. Haynes refused and took a step toward the officers while becoming belligerent and angry. Haynes was asked to take a step back and, when he declined to do so, the officers attempted to arrest him.

When the officers tried to handcuff him, Haynes pulled his hands away and cursed at the officers. The officers assisted Haynes to the floor where they proceeded to handcuff him. Haynes then attempted to lift himself up off the floor when he was asked to he still. After he was handcuffed, the officers attempted to get clothes for Haynes to wear but he refused clothing and continued to yell and curse at the officers. When the officers led him to the patrol car, he attempted to push back, refused to walk, and continued to curse at them. After being put in the patrol car, Haynes remained combative, cursed the officers, and threatened to kill them after he was released from jail.

At the police station, Haynes was placed in the smaller of two holding cells. He remained angry and began kicking the door. He was told to stop kicking, but refused. Officers then decided to move him to a larger holding cell to prevent him from kicking the door. Haynes continued to resist during the move.

The verdict directing instruction posited that Haynes resisted arrest either by using violence or physical force. Haynes contends that there was insufficient evidence to support the submission of “violence” as a method of perpetuation of the crime. He correctly argues that the evidence must support both alternative submissions. State v. Davison, 46 S.W.3d 68, 75 (Mo.App.2001). He points out that Damson and other cases have rejected the argument that submission of a theory of criminal responsibility unsupported by the evidence is not prejudicial error if another submission is supported by the evidence. Davison and the other cases relied upon, however, involve preserved claims of instructional error.

“Instructional error seldom rises to the level of plain error.” State v. Wright, 30 S.W.3d 906, 912 (Mo.App.2000). Unpreserved claims of instructional error can be reviewed under Rule 30.20 if manifest injustice would otherwise occur. State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001). For instructional error to be plain error the defendant must show more than mere prejudice; he must “establish that the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict.” Wright, 30 S.W.3d at 912.

Haynes makes no argument of any error, plain or otherwise, regarding the submission of the “physical force” prong of the instruction. We have reviewed the record carefully and, viewed in the light most favorable to the jury’s verdict, as we must, the evidence was overwhelming that Haynes used physical force to resist his arrest. Under these circumstances, we believe that the affect on the jury’s verdict, if any, did not result in manifest injustice.

The judgment is affirmed.

EDWIN H. SMITH, Chief Judge, and PAUL M. SPINDEN, Judge, concur.

      . The jury did send a question asking for a definition of both violence and physical force. We do not agree that this reflects confusion or concern by the jury that affected its deliberations and verdict. The difference between violence and physical force as means of resistance may not be so clear to a layman. The question can as easily be explained by the argument of defense counsel that in effect they were the same thing.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    EIMAN BROTHERS ROOFING SYSTEMS, INC., Respondent, v. CNS INTERNATIONAL MINISTRIES, INC., Appellant.
    No. WD 63343.
    Missouri Court of Appeals, Western District.
    April 5, 2005.

      Timothy Belz, St. Louis, MO, for Appellant.
    Jackie D. Hendrix, St. Joseph, MO, for Respondent.
    Before: LOWENSTEIN, P.J., BRECKENRIDGE and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This appeal arises from a judgment ordering CNS International Ministries, Inc. to pay the respondent, a contractor, the unpaid balance of $46,263.69 plus attorney’s fees in a breach of contract action. The judgment is affirmed.

Facts

In February 2000, CNS International Ministries, Inc. (CNS) signed a contract with Eiman Brothers Roofing Systems (Eiman). Under the contract, Eiman would provide CNS with a clay tile roof for one of their properties. Based on the size of the roof provided in CNS’ plans, the total amount of the contract was $52,731.00. In May 2000, Eiman realized that the plan provided by CNS underestimated the roofs actual size, requiring an additional 20 to 25 squares. Eiman, demanding a second contract, recalculated and re-bid the project. In May 2000, CNS signed a contract modification proposal sent by Eiman, adding $23,000 in costs. With the work substantially complete, CNS noted problems in Eiman’s performance and its alleged failure to deliver on assurances to correct those problems. Consequently, CNS ordered Eiman to stop working on the roof. Eiman then brought this breach of contract action. At the time of breach, CNS had paid a total of $29,000 on the contract. After a bench trial, the court found in favor of Eiman finding that the May 2000 proposal was a contract and awarded damages respectively.

Analysis

CNS argues four points on appeal: (1) that the May 2000 contract is invalid because it was not properly executed; (2) the May 2000 contact lacked proper consideration; (3) the attorney fee provision of the May 2000 contract is unenforceable because it is incomplete; and (4) the trial court damage award is improper.

In a court-tried case, the judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court reviews the evidence, along with all reasonable inferences, in the light most favorable to the trial court’s judgment and disregards all contrary evidence and inferences. Wildflower Cmty. Ass’n, Inc., v. Rinderknecht, 25 S.W.3d 530, 534 (Mo. App.2000).

First, CNS contends that the trial court erred in basing its judgment on the May 2000 contract, because CNS did not sign below the “Acceptance of Proposal” portion. It argues that because this portion purports to bind only those described as the “undersigned,” CNS is not bound by the proposal. However, the placement of a signature is not dispositive of the signer’s intent. ‘While the usual place of signature is at the close of a contract, yet if it appears in the writing at any other place, and was placed there as a signature, it is sufficient.” McMickle v. Wabash Ry. Co., 209 S.W. 611, 612 (Mo. App.1919). Accordingly, CNS signature was sufficient to form a contract.

CNS also claims that the contract was unenforceable for lack of consideration, in that Eiman had a pre-existing duty to CNS. Specifically, CNS argues that the May 2000 proposal called for Ei-man to perform in exactly the same manner as the original contract. Despite CNS’ contentions to the contrary, the obligations were not identical. Modification of a contract is enforceable only if based upon mutual assent and supported by consideration. MECO Sys., Inc. v. Dancing Bear Entm’t, Inc., 42 S.W.3d 794, 803 (Mo.App. 2001). A promise to carry out an already existing contractual duty does not constitute consideration. Zipper v. Health Midwest, 978 S.W.2d 398, 416 (Mo.App.1998). Here, the original contract required Eiman to roof CNS’ property according to the first set of plans, which called for a smaller roof. Conversely, under the May 2000 proposal Eiman was to provide CNS with additional labor and materials for the larger roof in return for CNS’ payment of an extra $23,000. These new obligations are sufficient consideration for the May 2000 modification.

Next, CNS argues that the trial court erred in granting attorney fees under the May 2000 contract because the provision was unexecuted and incomplete, thus, unenforceable. This contention is without merit for two reasons. First, as discussed above, the signature on the contract was sufficient to bind CNS. Second, although the attorney fee provision was incomplete, there was sufficient evidence that the parties intended the provision to be included. The primary rule of contract interpretation is to ascertain the parties’ intention and give effect to that intention. Langdon v. United Rests., Inc., 105 S.W.3d 882, 887 (Mo.App.2003). Where a contract is ambiguous the court can consider extrinsic evidence in determining the parties’ intent. Id. An ambiguity arises when there is uncertainty in the meaning of the words used in the contract. Lacey v. State Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.App.2004). Whether a contract is ambiguous is a question of law. Id. at 838. Because the attorney provision of the May 2000 contract is incomplete, its effect lacks certainty. Therefore, in ascertaining the intent of the parties, the trial court could properly consider the original agreement, which included the same provision except that the missing language from the May 2000 contract was not omitted.

Finally, CNS contends that the trial court erred in applying the substantial performance doctrine in that it did not apply the proper damage formula. “The proper measure of damages in a case where an owner breaches a construction contract by preventing the contractor from performing the work is the contract price less the amount it would have cost the contractor to perform the contract.” Forney v. Mo. Bridge & Concrete, Inc., 112 S.W.3d 471, 474 (Mo.App.2003). According to uncontradicted testimony, Eiman’s work was 99% complete at the time CNS told them to stop working. As such, the trial court’s award of $46,263.69, precisely 99% of the unpaid portion of the contract, was an appropriate measure of damages. The trial court was entitled to award a cost of repair where defects are shown and it is reasonable. Forsythe v. Starnes, 554 S.W.2d 100, 109 (Mo.App.1977). However, in determining if the roof was defective, the trial court noted that CNS’ expert had little or no experience in the installation of clay tile roofs. Furthermore, the court determined that the “defects” could be cured at no additional cost. Thus, the trial court’s decision not to award CNS damages for repair is not erroneous.

The judgment is affirmed.

All concur.

      . The May 2000 contract contained a provision stating, "The undersigned/buyer agrees to pay all collection costs, finance charges, and reasonable attorney fees incurred by [Ei-man] in collection of the” but contains no other language, making it an incomplete clause. However, the original agreement contains the exact same provision but includes the phrase "above contract amount” completing the clause.


author: HOLLY M. KIRBY, J.,

text:
    Diann PARNELL v. Victor L. IVY, Peter J. Dauster, Hardee, Martin, Jaynes & Ivy, P.A., C. Wesley Fowler and Glankler Brown, PLLC.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 21, 2004 Session.
    June 7, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 29, 2004.

      Jeffrey P. Boyd, Jackson, for the appellant Diann Parnell.
    Peter J. Dauster, Jackson, pro se and for the appellees Victor L. Ivy and Har-dee, Martin, Jaynes & Ivy, P.A.
    Glen G. Reid, Jr. and Jeffrey Fleish-mann, Memphis, for the appellees C. Wesley Fowler and Glankler Brown, PLLC.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID G. HAYES, Sp.J., joined.

This is a legal malpractice case. The client filed suit in federal court against a municipality for the death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal court dismissed the GTLA claim but retained the § 1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the § 1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.

On January 8, 2000, a City of Trenton police officer observed Joel Parnell (“Mr.Parnell”) walking the streets of Trenton intoxicated. The police officer picked up Mr. Parnell and drove him to the city limits, where Mr. Parnell resumed walking in an intoxicated state. A motorist subsequently ran over and killed Mr. Parnell.

Mr. Parnell’s wife, Plaintiff/Appellant Diann Parnell (“Mrs.Parnell”), retained as her attorneys the Defendants/Appellees Victor Ivy (“Ivy”) and Peter Dauster (“Dauster”) of the Defendant/Appellee law firm Hardee, Martin, Jaynes & Ivy, P.A. (“Hardee Martin”) to assert claims arising from Mr. Parnell’s death against the City of Trenton and the City of Trenton Police Department (collectively, “the City of Trenton”). Hardee Martin then associated Defendant/Appellee C. Wesley Fowler (“Fowler”), an attorney at the Defendant/Appellee law firm Glankler Brown, PLLC (“Glankler Brown”).

On January 5, 2001, Mrs. Parnell’s counsel filed a complaint in federal district court, alleging a claim against the City of Trenton under the Tennessee Governmental Tort Liability Act (“GTLA Claim”). Her counsel later filed two amended complaints, adding federal constitutional claims under § 1983 of the United States Code (“ § 1983 claims”). On February 22, 2001, the federal district court dismissed the GTLA claim, declining to exercise supplemental jurisdiction over the matter. The federal district court retained jurisdietion over the § 1983 claims. Meanwhile, the statute of limitations on the GTLA claim had expired several days after Har-dee Martin and Glankler Brown originally filed the claim in federal court.

On April 6, 2001, defendant Fowler sent a letter to Mrs. Parnell, informing her that the federal district court had dismissed the GTLA claim and that the statute of limitations had run on her GTLA claim. He also advised her in writing that she had a potential legal malpractice claim.

In October 2001, defendant Fowler sent a letter to defendants Ivy and Dauster, opining that the § 1983 claims had little merit and that a pending motion for summary judgment filed by the City of Trenton would likely be granted. Fowler indicated that he believed if the GTLA claim were refiled in state court, it would likely be dismissed as well. On February 12, 2002, Fowler wrote Mrs. Parnell, telling her that if she wished to refile the GTLA claim, she would have to retain other counsel and file the claim by February 22, 2002, one year from the day the federal court originally dismissed the claim.

Mrs. Parnell obtained new counsel, who refiled the GTLA claim in state court on February 22, 2002. The GTLA suit sought identical damages to those sought in the federal § 1983 claims still pending in federal court. Because the statute of limitations on the GTLA claim had expired while it was pending in federal court, the state trial court dismissed the 2002 lawsuit. Mrs. Parnell then instituted the instant legal malpractice lawsuit against Hardee Martin and Glankler Brown for allowing the statute of limitations to run on her GTLA claim.

While the instant malpractice case was pending, Mrs. Parnell settled her § 1983 claims against the City of Trenton. Pursuant to the settlement agreement, for a settlement amount of $7,500, Mrs. Parnell executed a document fully releasing the City of Trenton from all claims arising out of Mr. Parnell’s demise.

Subsequently, in the legal malpractice lawsuit, Hardee Martin filed a motion for summary judgment. Hardee Martin noted that Mrs. Parnell sought the same damages in her § 1983 suit as she sought in the GTLA suit. They argued that because Mrs. Parnell obtained money for those damages by settling the § 1983 action, she was not damaged by their alleged malpractice. Hardee Martin argued further that Mrs. Parnell’s settlement agreement absolved the attorneys of any liability for their alleged malpractice, because Mrs. Parnell’s release of her claims against the City of Trenton precluded her from bringing the GTLA claim.

The trial court granted the motion, holding:

Because she voluntarily settled with the City of Trenton Defendants, she cannot, as a matter of law, prove causation or damages with respect to the legal malpractice case_[I]t is not the Defendants’ alleged negligence which prevents [Mrs. Parnell] from recovering further against the City of Trenton Defendants; rather, it is her voluntary act of settling with them and executing a full and final release in their favor.

Thus, the trial court held that Mrs. Parnell’s settlement agreement, rather than her attorneys’ alleged malpractice, prevented her from recovering further from the City of Trenton, thereby negating her attorneys’ negligence. The trial court reasoned, “Even if the Governmental Tort Liability Act claim were currently pending against the City of Trenton Defendants and was not barred by the statute of limitations, [Mrs. Parnell] could not recover against them in the face of the full and final release which she executed.” The trial court reasoned further: “[Mrs. Parnell] has recovered for the alleged wrongful death of [Mr.] Parnell, and she may not recover twice for [Mr. Parnell]’s death. Regardless of which theory of recovery [Mrs. Parnell] advances, (Governmental Tort Liability Act, § 1983, or legal malpractice), the damages she could recover would be the same.” Thus, the trial court found that Mrs. Parnell could prove neither causation nor damages. In the interest of judicial economy, the trial court extended the grant of summary judgment to Glankler Brown as well. From that order, Mrs. Parnell now appeals.

On appeal, Mrs. Parnell argues that permitting her to recover for Hardee Martin and Glankler Brown’s alleged malpractice would not result in a double recovery because the damages in the malpractice lawsuit differ from the damages sought in the GTLA and § 1983 claims. Mrs. Parnell argues further that the settlement agreement releasing the City of Trenton from liability does not absolve Hardee Martin and Glanker Brown from liability, because the release was signed after Hardee Martin and Glankler Brown permitted the statute of limitations on the GTLA claim to run.

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

To prevail in a legal malpractice action, a plaintiff must show that her attorney owed her a duty, that the attorney breached that duty, that the plaintiff suffered damages, and that the attorney was the factual and legal cause of the plaintiffs damages. Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn.2001). The Tennessee Supreme Court has defined damages in the context of legal malpractice as “the loss of a legal right, remedy or interest.” See John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.1998) (defining “legally cognizable damage,” the first element necessary to the tolling of the statute of limitations for legal malpractice cases).

The parties cite no Tennessee case addressing the issue presented by this fact situation, and we have found none. Decisions in other states, however, are clear. Though the amount of damages in a malpractice action are measured with reference to the damages sought in the underlying suit, the injuries suffered by a plaintiff in a legal malpractice suit are separate and distinct from those suffered in the underlying suit. For example, in Titsworth v. Mondo, 95 Misc.2d 233, 407 N.Y.S.2d 793 (N.Y.Sup.Ct.1978), a tort claimant settled the underlying lawsuit, accepted the settlement payment, and then sued his attorney, seeking as damages the difference he claimed a jury would have awarded him, but for the attorney’s malpractice. Id. at 794. On the plaintiffs personal injury claim, the attorney had filed a lawsuit seeking $100,000 in damages. Id. The plaintiff discharged the original attorney and hired another one. Id. The second attorney filed a motion to increase the ad damnum from $100,000 to $500,000; this was denied, apparently because of an action taken by the original attorney. Id. The plaintiff settled the underlying lawsuit for $90,000. Id. He then filed a legal malpractice lawsuit against the original attorney, alleging that the original attorney sued for an inadequate amount on the personal injury claim and then prevented the plaintiffs new attorney from increasing the ad damnum. Id. The defendant attorney argued that the settlement precluded the plaintiff from suing him for legal malpractice. Id. at 795. Quoting an earlier case, the court held:

“Where the termination is by settlement rather than by a dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because prior misfeasance or nonfeasance by the attorneys left no other recourse ⅞ * * [The] cause of action for legal malpractice must stand or fall on its own merits with no automatic waiver of a plaintiffs right to sue for malpractice merely because plaintiff had voluntarily agreed to enter into a stipulation of settlement.”

Id. at 796 (quoting Becker v. Julien, Blitz & Schlesinger, 95 Misc.2d 64, 406 N.Y.S.2d 412, 413-14 (N.Y.Sup.Ct.1977)).

Likewise, in King v. Jones, 258 Or. 468, 483 P.2d 815 (1971), the plaintiff hired a law firm to represent her in a personal injury claim against a car dealership and an unknown driver. Id. at 816. The plaintiff settled the case. Id. at 816-17. She then sued the attorney for malpractice, alleging that she would have received a much higher amount had the law firm not allowed the statute of limitations to run against the driver. Id. at 816. The law firm asserted that the settlement barred the plaintiffs malpractice claim. Id. at 816-17. The King court held:

We conclude that plaintiffs release of [the driver] does not operate as a bar to plaintiffs claim for malpractice against the defendants. Plaintiffs claim against [the driver] for personal injuries and her claim against defendants for malpractice are separate and distinct claims. Her cause of action against defendants arose when they allowed the statute of limitations to run [on] her claim against [the driver]. Her subsequent release of [the driver] had no relationship to the cause of action she had acquired against the defendants.

Id. at 818.

In the case at bar, Mrs. Parnell contends that she would have received a much higher amount, either through settlement or trial, had the defendant attorneys not permitted the statute of limitations to run on her GTLA claim. Therefore, in the malpractice lawsuit, she must show that she would have received more than the $7,500 settlement but for the defendants’ alleged malpractice, and her damages would be the difference. This is a genuine issue of fact. Although her damages in the malpractice lawsuit are measured with reference to the underlying claim, her malpractice claim is separate and distinct.

Likewise, Mrs. Parnell’s release of the City of Trenton does not operate to release Hardee Martin and\ Glankler Brown. The record is clear that Mrs. Parnell and the City of Trenton entered into the settlement agreement after the statute of limitations on the GTLA claim had run and the claim had been dismissed. As noted above, her claim against the attorneys is separate and distinct, and not encompassed by the settlement agreement. Under these circumstances, we must conclude that the trial court erred in granting summary judgment in favor of Hardee Martin and Glankler Brown.

The decision of the trial court is reversed. Costs of this appeal are taxed against Defendants/Appellees Victor L. Ivy, Peter J. Dauster, Hardee, Martin, Jaynes & Ivy, P.A., C. Wesley Fowler and Glankler Brown PLLC, for which execution may issue if necessary.

      . Ivy, Dauster and Hardee Martin will be referred to collectively as "Hardee Martin.”

      . Fowler and Glankler Brown will be referred to collectively as "Glankler Brown.”

      . Without citing to the record, Mrs. Parnell asserts that she reached the settlement agreement with the City of Trenton before the federal court ruled on the motion for summary judgment.


text:
    Darrell TAYLOR, v. ALLSTATE INSURANCE COMPANY.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    April 21, 2004 Session.
    Sept. 3, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.
    Motion to Reconsider Denied Feb. 28, 2005.
    Darrell Taylor, appellant, pro se.

      Howard B. Hayden, Memphis, Tennessee, for the appellee, Allstate Insurance Company.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is an action to collect on a homeowner’s insurance policy. The roof and attic of the plaintiffs home sustained about $9,800 in damages. The plaintiff filed a claim on the homeowner’s insurance policy he had purchased from the defendant insurance company. The claim was denied. The plaintiff filed the instant lawsuit to recover the insurance proceeds. After the plaintiff presented his proof, the trial court entered a judgment in favor of the insurance company. The plaintiff now appeals. Based on the sparse record on appeal, we affirm.

On June 5, 2002, Plaintiff/Appellant Darrell Taylor (“Taylor”) filed a complaint in the Shelby County General Sessions Court against DefendanVAppellee Allstate Insurance Company (“Allstate”) for breach of contract. In his lawsuit, Taylor said that he lived in Memphis, Tennessee, and had a homeowner’s insurance policy with Allstate. While he was in the process of putting his home up for sale, Taylor asserted, he discovered that the home had sustained $9,806.15 in damages in the roof and attic area, or “from the roof top down.” Taylor apparently filed a claim on his insurance policy, and Allstate failed to pay under the policy for damages sustained to Taylor’s home.

On August 20, 2002, the General Sessions Court conducted a hearing, and Taylor represented himself pro se. The General Sessions Court entered a judgment in favor of Allstate.

Taylor appealed the adverse decision to the Shelby County Circuit Court, still without legal representation. On January 21, 2003, the Circuit Court conducted a bench trial. At the close of Taylor’s proof, the Circuit Court held in favor of Allstate.

On February 3, 2003, Taylor filed a notice of appeal from that decision, still pro se. On March 14, 2003, the Circuit Court entered a judgment in favor of Allstate consistent with its oral ruling. The judgment did not include any findings of fact, but stated merely that “the Pro Se plaintiff had failed to carry his affirmative burden of proof despite the presentation of live testimony....”

On June 9, 2003, Taylor filed a document purporting to be another notice of appeal and “Statement of Evidence.” The “Statement of Evidence” stated the following:

Two witnesses was subpoena [sic] in [advance of the] court date; one arrived 40 minutes into the court hearing that day and the other witness was not, but, was at home when I called him the hour of the court hearing. I told the Judge that the two witnesses was subpoenaed for court, but, either was at the court room at the beginning of the court’s opening.

The Statement contained no other information about the witnesses’ testimony or any other evidence submitted at trial. On July 2, 2003, Taylor filed a motion to have the Statement of the Evidence approved. On August 21, 2003, Allstate filed a response to Taylor’s motion, arguing that the Statement of the Evidence should not be approved because it was untimely filed under Tennessee Rule of Appellate Procedure 24(c). Nothing in the appellate record indicates that the Statement of the Evidence was approved, but we will assume for purposes of this appeal that the Statement of the Evidence submitted by Taylor was in fact approved by the Circuit Court.

The trial court’s decision is reviewed de novo on the record. Ordinarily, the trial court’s findings of fact are presumed to be correct unless the preponderance of the evidence is otherwise. See Alexander v. Tennessee Farmers Mut. Ins. Co., 905 S.W.2d 177, 179 (Tenn.Ct. App.1995); Tenn. R.App. P. 13(d). In this ease, however, the factual findings cannot be reviewed, de novo or otherwise, because the record on appeal contains no record of the evidence or of the trial court’s findings of fact. See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992); see also Craft v. Forklift Systems, Inc., No. M2002-00040-COA-R3-CV, 2003 WL 21642767, at *2 (Tenn.Ct.App. July 14, 2003). In his second notice of appeal, Taylor requested that a transcript of the Circuit Court proceedings be sent to this Court. However, apparently no transcript of the proceedings was made, and therefore no such transcript could be filed in this appeal. In addition, although Taylor submitted the “Statement of Evidence,” quoted above, presumably approved by the Circuit Court, it does not describe the evidence submitted at trial in any manner that would allow this Court to determine whether the trial court’s findings of fact or conclusions of law were correct.

This Court’s authority to review a trial court’s decision is limited to those issues for which an adequate legal record has been preserved. Trusty v. Robinson, No. M2000-01590-COA-R3-CV, 2001 WL 96043, at *1 (Tenn.Ct.App. Feb.6, 2001). The parties, not the court, bear the burden of ensuring that the record on appeal contains a fair, accurate, and complete account of what transpired in the trial court. Id.; see also Houston v. Mounger, No. E2002-00779-COA-R3-CV, 2003 WL 22415363, at *2 (Tenn.Ct.App. Oct.23, 2003) (“It is the settled duty of the appellant to comply with Rule 24(c) to the end that we are assured of a transcript of the proceedings or a statement of the evidence which conveys a fair, accurate and complete account of what transpired in the trial court.”). Without a complete record or sufficient statement of the evidence from which to determine whether the trial court acted appropriately, we “must assume the sufficiency of the evidence to support the judgment.” Houston, 2003 WL 22415363, at *2; Sherrod, 849 S.W.2d at 784 (stating that, without an adequate record containing the facts of the case, the court “must assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court’s factual findings”). Therefore, under the circumstances, we are compelled to assume that the Circuit Court’s decision in favor of Allstate was supported by the evidence submitted at trial.

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Darrell Taylor, for which execution may issue, if necessary.

      . Under that rule, the statement of the evidence must be filed within ninety (90) days after the filing of the notice of appeal. Because Taylor had filed his notice of appeal in February 2003, Allstate argued that his June 2002 statement of the evidence was untimely.

      . Counsel for Allstate conceded in the oral argument in this appeal that Taylor’s proposed "Statement of Evidence” was approved by the Circuit Court, and indicated that the appellate record would be supplemented with documentation of such approval. Although the record was not supplemented, we will assume arguendo that it was approved.

      . Taylor filed a pauper’s oath in lieu of an appeal bond.