Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 01-11-2022

Case Style:

Tina M. Pennington v. Brandon Wilson

Case Number: SD37144

Judge: Jack A.L. Goodman

Court: Missouri Court of Appeals, Southern District, Jasper County

Plaintiff's Attorney:

Best Breach of Contract Lawyer Directory

Defendant's Attorney:

Description: Carthage, Missouri civil litigation business law lawyer represented Plaintiff, who sued Defendants on breach of contract theories.

Tina Pennington sued her neighbors, Respondents (“Wilsons”), when their
contractor cleared trees and brush on Pennington’s side of the property line. She did not
name the contractor as a defendant. At the bench trial, the contractor admitted he cleared
brush and some small trees on Pennington’s property, and that his bulldozer struck some
of her railroad ties. Nevertheless, the trial court denied Pennington’s petition, finding she
had presented evidence of some damages but no credible evidence the Wilsons were
legally responsible for the damages.
Pennington’s appeal presents two claims of error: (1) that the court misapplied the
law of agency, and (2) that the court’s determination as to damages was against the weight
of the evidence.1 We affirm.
Principles of Review
Rule 84.13(d), Missouri Court Rules (2012), and Murphy v. Carron, 536 S.W.2d
30 (Mo. banc 1976), govern our review. “We are required 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.” McDermot v. Doner, No.
SD36775, slip op. at *7 (Mo.App. Oct. 14, 2021), reh'g and/or transfer denied (Nov. 2,
2021) (citing Murphy, 536 S.W.2d at 32); accord Karney v. Dep’t of Labor & Indus.
Relations, 599 S.W.3d 157, 161 (Mo. banc 2020). Where a party asserts a misapplication
of law claim, we review the trial court’s legal conclusions and application of law to the
facts de novo. Empire Dist. Elec. Co. v. Scorse as Tr. Under Tr. Agreement
Dated November 17, 1976, 620 S.W.3d 216, 224 (Mo. banc 2021).
“When evidence is contested by disputing a fact in any manner, this Court defers
to the trial court’s determination of credibility.” White v. Dir. of Revenue, 321 S.W.3d
298, 308 (Mo. banc 2010). Only when the evidence is uncontested do we give no
deference to the trial court’s findings. Id. To prevail on appeal in such a circumstance,
the appellant would have to show the evidence presented compelled the trial court to find
in their favor as a matter of law and no reasonable trier of fact could have concluded
otherwise. See Empire Dist. Elec. Co., 620 S.W.3d at 227-28.
Appellant first argues the trial court erroneously applied the law when it found no
1 The Wilsons did not file a brief on appeal. While they are not required to file a brief, the failure to do so
ensures that we will review the claimed errors without the benefit of whatever argument they may have
presented. Turner v. Missouri Dep’t of Conservation, 349 S.W.3d 434, 438 n.1 (Mo.App. 2011).
credible evidence of a principal-agent relationship between the Wilsons and their
“Agency is the fiduciary relationship resulting from the manifestation of consent
by an agent to a principal that the agent will act on the principal’s behalf and subject to
his control.” Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo.
banc 2008) (citing RESTATEMENT (SECOND) OF AGENCY § 1 (AM. L. INST. 1958)). A
“principal must have the ‘right to control’ the agent.” Id. Conversely, “An independent
contractor is one who contracts with another to do something for him but is neither
controlled by the other nor subject to the other’s control with respect to his physical
conduct in the performance of the undertaking.” Tom Lange Co., Inc. v. Cleaning
by House Beautiful, 793 S.W.2d 869, 871 (Mo.App. 1990) (citing RESTATEMENT
(SECOND) OF AGENCY § 2 (AM L. INST. 1957)). While a principal may be responsible for the
acts of her agent undertaken with actual authority, Bach 257 S.W.3d at 608, “[a]
principal is generally not responsible for the wrongs committed by the independent
contractor.” Tom Lange Co., Inc., 793 S.W.2d at 871.
Agency is not presumed, World Res., Ltd. v. Utterback, 943 S.W.2d 269, 271
(Mo.App. 1997), but agency and the agent’s authority often are implied by proof of facts,
circumstances, and conduct of the party to be charged. Peoples Nat’l Bank, N.A. v.
Fish, 600 S.W.3d 273, 279 (Mo.App. 2020). The existence of an agency relationship
generally is a question of fact, not a question of law. West v. Sharp Bonding Agency,
Inc., 327 S.W.3d 7, 11 (Mo. App. 2010). Pennington had the burden to prove that the
Wilsons’ contractor was acting as their agent when he cleared the brush and trees on
Pennington’s property. Utterback, 943 S.W.2d at 271.
Here, the Wilsons contested the allegation of agency by denying it in their answer
and by cross-examining Pennington’s witnesses who testified on this issue. Proof on this
contested fact issue involved witness testimony and the party with the burden of proof
lost. What we said in Black River Elec. Coop. v. People’s Cmty. State Bank bears
repeating here:
[A] fact-finder always can disbelieve all or any part of the evidence, just as
it always may refuse to draw inferences from that evidence. Credible,
believable, even uncontradicted proof of evidentiary facts may not prove a
contested issue of ultimate fact to the fact-finder’s satisfaction. A party with
the burden of proof cannot merely offer a submissible case; it must convince
the fact-finder to view the facts favorably to that party. This is because
evidence never proves any element until the fact-finder says it does.
466 S.W.3d 638, 640 (Mo.App. 2015) (internal quotation marks and citations omitted).
Because the issue was contested, we must defer to the trial court’s assessment of
witness credibility, particularly on a fact-intensive issue such as agency. There was no
evidence the Wilsons themselves damaged Pennington’s land and no credited evidence
the Wilsons’ contractor acted as their agent rather than as an independent contractor.
With no credited evidence to substantiate an agency claim on which Pennington bore the
burden of proof, the trial court did not err in declaring or applying the law as it did. Point
I is denied.

Outcome: Given our disposition of Point I, no purpose would be served in analyzing Point II.
The named defendants are not liable for whatever damages Pennington may have
suffered, regardless of their extent. Point II is denied. Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case