Karen F. Trimble, d/b/a A-Advanced Bail Bonds, Respondent/Cross-Appellant v. Timmi Ann Pracna, Appellant/Cross-Respondent and Treveillian Heartfelt, Defendant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Karen F. Trimble, d/b/a A-Advanced Bail Bonds, Respondent/Cross-Appellant v. Timmi Ann Pracna, Appellant/Cross-Respondent and Treveillian Heartfelt, Defendant. Case Number: 25555 & 25563 Handdown Date: 07/22/2004 Appeal From: Circuit Court of Greene County, Hon. Don E. Burrell, Jr. Counsel for Appellant: Charles B. Cowherd Counsel for Respondent: R. Lynn Myers and Richard D. Crites Opinion Summary: None Citation: Opinion Author: Nancy Steffen Rahmeyer Opinion Vote: REVERSED AND REMANDED. Parrish, J., concurs and files concurring opinion. Shrum, J.,

Opinion: This appeal and cross-appeal stem from a judgment awarding damages for breach of contract and fraud on the retrial of a suit brought by a bail bondsman, Karen Trimble, d/b/a A-Advanced Bail Bonds ("Trimble"), against Timmi Ann Pracna ("Pracna") and Treveillian Heartfelt (" Heartfelt"). Trimble v. Pracna, 51 S.W.3d 481, 489 (Mo. App. S.D. 2001) (hereinafter "Trimble I "). In Trimble I, this court affirmed the judgment on the breach of contract claim, reversed as to the issue of damages, reversed the directed verdicts on the fraud and conspiracy to commit fraud claims, and remanded to the trial court for a new trial on the breach of contract claim, the fraud claim, and on damages. Id. at 505. On remand the trial court allowed the parties to amend their pleadings, yet directed a verdict on liability on the new breach of contract claim based on Trimble I. (FN1) Pracna's six points on appeal consist of various evidentiary, legal, and instructional errors, including her assertion that the trial court improperly interpreted this court's remand instructions. (FN2)

On cross-appeal, Trimble alleges four trial court errors concerning the granting of a set-off, costs, and attorney fees. Although the facts of this case were set forth exhaustively in Trimble I, we will nonetheless set forth an abbreviated version of the facts to provide a backdrop for our legal analysis. Trimble was a bail bondsman who was contracted by Pracna to issue a bond in the amount of $25,000.00 for Heartfelt, who was in jail in Taney County. While Heartfelt was still in jail, a second charge, regarding a bad check, was filed against him and a $50,000.00 bond was set for that charge. Pracna subsequently paid a bond fee in the amount of $75,000.00 for the initial two bonds and all of the claimed misrepresentations have to do with the inducement to write the initial bond. After the initial bonds were posted, Heartfelt was arrested as he was leaving jail on a new fugitive warrant stemming from Idaho parole violations. The bond for this new charge was set at $250,000.00. Pracna claims, and Trimble admits, that the premium for the second bond was to be paid by Heartfelt.(FN3) Ultimately, Heartfelt failed to appear at a court hearing for which the bonds were posted and, thereafter, significant efforts were made to procure his presence in court; however, none of the bonds were or apparently can be forfeited at this juncture. As previously noted, following remand, Trimble amended her pleadings concerning the breach of contract by requesting additional damages for the breach of contract and by omitting her admission that Pracna had already paid a portion of the claimed damages. She also added to her petition a claim for abuse of process, which she later dismissed voluntarily before the trial began. By way of reply, Pracna filed an answer and an amended counterclaim in which she sought a refund for an overpayment on the bond and damages for conversion. In analyzing the merits of this appeal, it is important to observe that, in Trimble I, only one count, for breach of contract, was submitted to the jury and the jury accordingly returned one verdict. In the case now before us, Trimble was allowed to submit two separate verdict directors, one in which she claimed damages for breach of contract, and the other in which she claimed damages for fraud; thus, Trimble was not forced to elect a remedy. The jury returned verdicts in favor of Trimble, awarding her damages in the amount of $144,420.00 for breach of contract and $28,900.00 for fraud, with $146,000.00 in punitive damages. The trial court then assessed attorney fees and expenses against Pracna on the breach of contract claim in the amount of $48,380.70 and $12,324.67, respectively. The trial court also granted a set-off to Pracna in the amount of $58,500.00 for the money she paid on the bond. In Count I of the second amended petition, Trimble claimed that Pracna signed, executed, and delivered the bond indemnity agreement to her and that Pracna subsequently defaulted under the terms of that agreement. As a result, Trimble argued, she suffered damages in the form of the bond premium, expenses she incurred in enforcing the agreement, and expenses she incurred in recovering Heartfelt.

In Count II of her second amended petition, Trimble averred that, "in order to induce the Plaintiff to write the bail bond . . . Pracna made a number of statements and representations," that the statements and representations were false and material to the writing of the bond, and that Trimble was damaged when Heartfelt failed to appear. Specifically, Trimble alleged that her damages were for "lost time and work and money in attempting to recover"

(FN4) Heartfelt, damaged credit, (FN5) and emotional and mental anguish, (FN6) as well as being "wrongfully harassed" by Pracna in her attempts to secure the collateral. (FN7) As we noted in Trimble I, many aspects in that case were, at best, non-conventional. Trimble I, 51 S.W.3d at 492 n.

1. Likewise, many of the errors claimed by each party resulted from the non-conventional process used in this case.

Because we agree that the trial court erred in permitting Trimble to recover damages for both breach of contract and fraud to the jury, and because we find that this error resulted in prejudice to Pracna, we have no choice but to reverse and remand for a new trial. See Schreibman v. Zanetti, 909 S.W.2d 692, 703-704 (Mo. App. W.D. 1995). Consequently, in our review, we do not address each point on appeal and cross-appeal brought by Pracna and Trimble, respectively, for to do so would result in our impermissibly rendering an advisory opinion on evidence that may or may not be admitted during the next trial. See Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 523 (Mo. App. S.D. 2004) (citing Air Evac EMS, Inc. v. Goodman, 883 S.W.2d 71, 74 (Mo. App. S.D. 1994)). Instead, we limit our review to an analysis of Point V of Pracna's argument, which addresses the trial court's erroneous submission of jury instructions regarding both breach of contract and fraud. Although we direct our attention to the issue concerning an election of inconsistent theories of recovery, various procedural problems will be noted as they are ancillary to the larger issue of the failure of the trial court to force Trimble to elect a theory of recovery prior to submitting the case to the jury. In analyzing Point V, we find it necessary to reproduce several of the myriad of jury instructions submitted in this case. Verdict Form A was submitted "[o]n the claim of plaintiff Karen Trimble for breach of the bail bond contract"; Verdict Form B was submitted "[o]n the claim of plaintiff Karen Trimble for fraud"; and Verdict Form C was an assessment for punitive damages. As for the verdict directors, we note that the breach of contract verdict director, Instruction No. 9, provided: Under the law, defendants Timmi Pracna and Treveillian Heartfelt are liable to plaintiff Karen Trimble for damages in this case. Therefore, you must find the issues in favor of plaintiff and award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe she sustained as a direct result of the breach of the bail bond contract mentioned in the evidence. (FN8)

Additionally, Trimble submitted five verdict directors (numbered 13 through 17) regarding various misrepresentations allegedly made by Pracna which comprised Trimble's fraud claim. Each of the verdict directors reiterated that the representations were "material to the decision of [Trimble] to post the bail bond," except Instruction No. 15, which indicated that the representation was "material to the decision of plaintiff to expend . . . funds for bounty hunter fees and expenses." Trimble then requested, in Instruction No. 18, such sums as the jury believed would fairly and justly compensate her for any damages she sustained as a direct result of the conduct of Pracna. Instruction No. 18 also included a tail which stated "[y]ou may not assess any damages on Verdict Form B, which you already have assessed on Verdict Form A, or which is referred to in Instruction No. 11." On appeal, Trimble argues that this tail saves the instructions from any allegation that the instructions improperly permitted her to receive a double recovery. (FN9) Pracna, however, contends that Instruction No. 15 prejudiced her in that it permitted the jury to award Trimble damages for breach of contract and fraud based upon the same set of operative facts, thereby giving Trimble a windfall and double recovery. We agree. In Missouri, it is well-settled rule of law that a party cannot be compensated twice for the same injury. Meco Sys. v. Dancing Bear Entm't., 42 S.W.3d 794, 810-11 (Mo. App. S.D. 2001). Thus, a person claiming fraud has two options: "he can return what he purchased and get his money back or keep what he purchased and sue for the benefit of the bargain." Vogt v. Hayes, 54 S.W.3d 207, 211 (Mo. App. S.D. 2001) (citing Little v. Morris, 967 S.W.2d 685, 686 (Mo. App. S.D. 1998)). Accordingly, if the jury found in her favor, Trimble was entitled to be made whole by one compensatory damage award, but not to receive the windfall of a double recovery. Id. "If the proven damages for both the breach of contract and for the tort are the same, then the damage award merges." Id. Pracna alleges that Trimble recovered her bounty hunter fees and expenses under both Instruction No. 9 (a breach of contract instruction) and No. 15 (a fraud instruction). While Instruction No. 18 directed the jury that they were not to award the same damages under the fraud and contract claims, it did not tell the jury that if the only damages sustained by plaintiff related to the bounty hunters then Instruction No. 15 could not support a verdict. Pracna further argues that, because both claims rely upon the same set of facts, the trial court should have required plaintiff to elect a single remedy based upon those facts. In failing to elect a single remedy, Trimble was, in effect, allowed to maintain that Pracna's statements to her were true for purposes of the breach of contract claim but false for purposes of the fraudulent misrepresentation claim. Furthermore, Pracna contends she paid $58,500.00 to cover the bounty hunter fees and

expenses and Trimble was not actually damaged by hiring bounty hunters to recover Heartfelt. In this case, the double recovery that Trimble received with respect to the bounty hunter fees underscores the reason for the doctrine of election of inconsistent theories of recovery. The doctrine of election of inconsistent theories of recovery requires a party to elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the jury. If two counts are so inconsistent that the proof of one necessarily negates, repudiates, and disproves the other, it is error to submit the inconsistent theories. The determination of when two theories are inconsistent is heavily dependent upon the facts of the case, although a common thread for inconsistent theories is if in all circumstances one theory disproved the other. Thus, the theories must factually disprove each other to be inconsistent and to require election. Burns Nat'l Lock v Am. Family Mut., 61 S.W.3d 262, 272 (Mo. App. E.D. 2001) (internal citations omitted). Based on the facts of this case, we find that Trimble's theories of breach of contract, under Count I, and fraud, under Count II, are both inconsistent and mutually exclusive. Count I contends that Pracna entered into a contract, or bond indemnity agreement, with Trimble, that she breached that contract, and that Trimble was damaged as a result. Trimble contends that the agreement mandated that Pracna indemnify Trimble for all liability, loss, damages, attorney fees, and expenses whatsoever. She specifically claims bounty hunter fees, phone expenses, motel expenses, and the like which she expended in procuring the return of Heartfelt as part of the contract. Trimble requested the jury to enforce that contract by making Pracna satisfy the contractual obligations. Conversely, on the fraud claim in Count II and in verdict directors 13 through 17, Trimble states that five representations made to her by Pracna were false and induced Trimble to enter into the bond indemnity agreement with Pracna. Trimble thus disavows the provisions of the contract and seeks damages to put her back in the position she would have been in had the contract not been entered. As we review the pleadings and the withdrawal instructions as set forth above, it is clear that the only damages (FN10) that would have put Trimble back in the position she would have been in had she not entered the contract were damages for bounty hunter fees, which were the same damages due under the claim that the contract was breached. In summary, Trimble's claimed breach of contract action claimed Pracna promised to pay in the contract the expenses necessary to procure the presence of Heartfelt in court and asked the jury to enforce that contract by forcing Pracna to pay those fees. In her fraud claim, Trimble claimed that Pracna made a false statement when she said she was going to pay the bounty hunter fees and, because of the false statement, Trimble entered into a contract and incurred the damages of procuring the presence of Heartfelt into court. We have thus

traveled full circle. Trimble claims that Instruction No. 18 simply clarified that there could not be a double recovery and allowed the damages to be divided between two different theories; however, she cites no case law that allows a jury instruction to subvert the law on the election of inconsistent remedies. We find the following language in Perez v. Boatmen's Nat'l Bank to be instructive on the issue of dividing damages: By waiving the tort and suing in contract, a party necessarily waives the entire tort, and cannot recover part of his damages in contract and afterward maintain an action in tort for the balance, and it is not only with regard to defendant in the action brought that the waiver operates, but as regards others as well, a waiver of the tort and an action in contract brought against one of several tortfeasors precluding a subsequent action in tort against the others who were not parties to the first action. Perez, 788 S.W.2d 296, 299 (Mo. App. E.D. 1990) (internal citation omitted). At trial, Trimble simply attempted to divide the damages between her claims for breach of contract and fraud in one proceeding instead of a subsequent proceeding. We find no authority to allow the jury to do so, nor do we think it a wise policy to allow such a recovery. The purpose of the doctrine of inconsistent remedies is to prevent double recovery for a single wrong. Id. at 300. Pracna brings additional claims regarding a failure to establish each element of the damages. Specifically, Pracna challenges Trimble's claim for damages for bounty hunter fees that were not actually paid or incurred by her, as well as the damages for lost income which had no history of profits. (FN11) Pracna also challenges the trial court's award of attorney fees to Trimble on her breach of contract claim. Trimble likewise alleges various trial errors in her four points of the cross-appeal. Initially, Trimble claims trial error for allowing a set-off for the money which Pracna paid on the contract under the theory that this court's mandate disallowed the set-off and that the statute of limitations barred the claim. Next, Trimble claims error in not allowing the cost of the transcript for the first appeal as a damage under the contract. Finally, Trimble claims trial court error in allowing attorney fees at the rate of 33.5 % on the jury award for the breach of contract rather than at an hourly method. Because we are unable to predict the theory under which Trimble will submit this case to the jury, or the posture of the case at submission, we decline to address any of the remaining issues. The judgment of the trial court is reversed, and the cause is remanded for a new trial consistent with this opinion.

Footnotes:

FN1. It should be noted that Pracna alerted the trial court that the amended pleadings nullified the previous pleadings and that the "law of the case" did not apply to new issues that were newly introduced following remand. See M & H Enters. v. Tri-State Delta, 35 S.W.3d 899, 905 (Mo. App. S.D. 2001)(citing Davis v. J. C. Nichols Co., 761 S.W.2d 735, 742 n. 5 (Mo. App. W.D. 1988)) (holding that the "law of the case doctrine . . . does not apply to new issues introduced following remand by amended pleadings"). Contrary to the dissent, which finds the issue of whether the law of the case applies to be the applicable legal theory on all issues, our holding is confined to finding that the trial court erred in allowing Trimble to submit and recover the same damages under the breach of contract and fraud theory. FN2. Heartfelt defaulted on the first petition and is not a party to this appeal. FN3. Pracna alleges that the trial court erred in advising the jury that, as a matter of law, she owed a balance on the bond premium. The issue of whether the initial contract was modified was not addressed by Trimble I, and we express no opinion as to whether the contract was modified by the oral admissions and statements of Trimble, or whether the issue should have been submitted to the jury. FN4. Instruction No. 11 withdrew from consideration "any loss income of Karen Trimble or A-Advanced Bail Bonds." FN5. Apparently, the claim for damaged credit was also withdrawn in Instruction No. 11 as "any interest or costs on bank loans obtained by Karen Trimble." ; FN6. Instruction No. 4 withdrew the "issues of emotional distress and mental suffering." FN7. There does not appear to be any evidence or claim that this claim for damages was claimed as damages at the trial of this case. We make no decision regarding this claim as a proper claim for damages. FN8. It might be advisable to repeat the language of Trimble I that, when an amended petition is filed, a former petition becomes an abandoned pleading that receives no further consideration in the case. Trimble I, 51 S.W.3d at 490. "It matters not that the amended petition duplicated allegations that had been in the earlier petition." Id. at 491. As noted herein, there was evidence Pracna and Trimble agreed that the second bond was to be paid by Heartfelt. At retrial, the trial court should ascertain whether a directed verdict is appropriate on amended pleadings. FN9. At oral argument, when asked to distinguish the damages for breach of contract from those for fraud, counsel for Trimble was unable to do so, and candidly admitted that the damages "overlap." FN10. Although the dissent argues that Trimble "kept her damages segregated," the only separated damages cited by the dissent are the damages for "personal time she spent in looking for Heartfelt." Although we do not address that purported element of damages, we note that Pracna alleged the trial court erred in failing to sustain a Judgment Notwithstanding the Verdict in Point III of this appeal in part because of the failure of proof on the issue of damages for fraud. Damages are an essential element to a claim for fraudulent misrepresentation. See Artilla Cove Resort, Inc. v. Hartley, 72 S.W.3d 291, 296-97 (Mo. App. S.D. 2002). We have not raised the issue of damages sua sponte but have once again allowed Trimble an opportunity to retry this case and submit damages under a theory of fraud rather than arbitrarily merging the damages for her. The issue is not whether the evidence came in without objection or was admissible, the question is whether Trimble made a submissible case on fraud if her only damages were for "personal time she spent looking for Heartfelt" at an hourly rate with no basis other than her testimony of what she sought for reimbursement for in this case only. She had never charged anyone else $400.00 per day for her services. We can find no cases supporting an award of damages for fraud based solely on a witness's wishes. FN11. Pracna argues that she paid the entire amount of the bounty hunter fees. Because we are remanding for a new trial, we make no decision as to whether substantial evidence supports a claim concerning the damages for the bounty hunter fees. We again simply alert the trial judge to that issue. Separate Opinion: Concurring Opinion by Judge Parrish: I concur. The issues on appeal, in my opinion, have been made

unnecessarily complex due to the chaotic fashion in which this case proceeded through the trial court to the point at which judgment was rendered. The opinion this court issued the first time this case was appealed suggested that many of the trial court proceedings had been, "at best, non-conventional." Trimble v. Pracna, 51 S.W.3d 481, 492 n.8 (Mo.App. 2001), ( Trimble I). That characterization continues to be appropriate. Trimble I pointed out that the attorneys representing Ms. Trimble (plaintiff) were the third set of attorneys she had engaged, and that the trial judge was the fourth judge assigned to the case. Id. at 486. The trial judge who tried the case this time is the fifth judge assigned to the case. Additionally, in the continuing spirit of litigious vigor that was acknowledged in Trimble I, plaintiff chose to tender an amended pleading for filing which the trial court permitted. At the time of the trial that produced the appeal in Trimble I, this case had proceeded from one in which a single breach of contract was alleged to one in which plaintiff asserted, by amended petition, five counts and Ms. Pracna (defendant) asserted a counterclaim with 11 counts. Id. After Trimble I, plaintiff again sought, and was permitted, to amend the petition on which the case was originally tried. The issue of the effect of plaintiff's amendment of her petition after Trimble I must be addressed. The change made by the amendment of the breach of contract claim (Count I) is described by the dissent as a change only affecting damages. On that basis, the dissent suggests the amendment should not affect the mandate of Trimble I that retrial of Count I be only on the issue of damages. As the dissent observes, the allegations of conduct that violated the terms of the contract in question remained the same. The changes in the petition relate to damages. The allegations relative to damages changed. The manner in which they were stated changed. Additionally, the amount of damages requested increased. The claim for damages increased from $181,525.30 to $350,000, an increase of $168,474.70, i.e., an increase of approximately 93 percent! I fail to comprehend how this magnitude of change of damages could be perceived as not affecting the manner in which factual allegations of liability would be contested in the course of trial. As such, I agree with the principal opinion's assessment that plaintiff's new pleading presented new issues that warranted new trial on all issues. See M & H Enterprises v. Tri-State Delta Chemicals, Inc., 35 S.W.3d 899, 905 (Mo.App. 2001). ("The law of the case doctrine . . . does not apply to new issues introduced following remand by amended pleadings.") Further, with respect to the issue of having submitted on both the tort claim of fraudulent misrepresentation and breach of contract, considering the totality of the record, the instructions and the procedure the trial court followed produced a distinct possibility that duplicative damages could have been awarded. If distinct and different damages had been proven with respect to the fraud claim and the contract claim, it is my opinion that it would have been proper to

submit both claims to the jury. However, I am not convinced that this occurred. Absent direction by the trial court as to what damages would be supported by each claim, i.e., the fraudulent misrepresentation claim and the breach of contract claim, nothing prevented the jury from "roam[ing] freely through the evidence and choos[ing] any facts which suited its fancy or its perception of logic" in assessing damages on both claims. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998). (FN1) Absent appropriate direction, the damage instruction that addressed these claims amounted to a roving commission in establishing damage awards. This, coupled with the amendment of the petition on remand following Trimble I, in my opinion, requires that the judgment be reversed and the case remanded for new trial on all issues.

Footnotes: FN1. The Committee Comment to MAI 4.01 (2002 Revision) provides a means for direction by the trial court in that it suggests that a trial court discuss, on the record, what damages are supported by the record in order that the closing arguments can be appropriately framed. The record does not reflect any guidance or discussion of this nature.

First, I do not understand why the "law of the case" nullification claim is an issue here. See n.1, principal opinion;

concedes what the record shows, namely, that the Trimble I contract pleading was essentially identical to the Trimble II contract count. This concession is found in Pracna's brief as follows: "Following the entry of the court's decision in Trimble I, plaintiff sought and obtained permission from the trial court to file her Second Amended Petition. With respect to plaintiff's claim for breach of contract, the Second Amended Petition was identical to the First Amended Petition except that plaintiff did not restate her allegation that . . . Pracna was entitled to a credit of $58,500.00." (Emphasis supplied.) This concession, plus the absence of an appellate argument on the "nullification" issue strongly suggests the trial court was correct when it implicitly concluded that Trimble's amendment did not nullify the previous pleadings and the law of the case attended. Tri-State Motor Transit Co. v. Holt, 921 S.W.2d 652, 656 (Mo.App. 1996). This court has consistently held that questions not presented in an appellant's brief are considered abandoned on appeal. Id. In my view, there is nothing in this record warranting a departure from that principle here. Since Pracna appears to have recognized

and accepted the trial court's ruling regarding her at-trial nullification argument, the following from Barkley v. Carter County State Bank, 791 S.W.2d 906 (Mo.App. 1990), is particularly apropos: "'On appeal, a trial court's judgment is presumed valid and the burden is appellants' to demonstrate incorrectness of the judgment.' It is not proper for this court 'to become an advocate for the appellant and search for a basis to challenge the trial court's findings.' A respondent does not have the burden on appeal to establish the correctness of a judgment." Id. at 915 (citations omitted). With that said, the nullification question has nevertheless arisen as an issue in this case. I disagree with the views expressed in the principal and concurring opinions that Trimble's filing of an amended petition following remand in Trimble I injected "new issues" into the case, thus precluding application of the "law of the case" doctrine. The rule, which says that the "law of the case" is nullified if pleadings are amended following remand, only applies if the amended petition introduces new issues or the evidence on retrial is substantially different from the evidence on a vital question considered at the first trial. Morris v. Bristow, 236 S.W.2d 316, 319 (Mo. 1951); Williams v. Ford Motor Co., 454 S.W.2d 611, 614 (Mo.App. 1970). Simply stated, that did not happen here. Trimble's amendment of Count I (the contract count) after remand in Trimble I did not introduce new issues regarding the part of the case to which the "law of the case" doctrine applied. In Trimble I, "the judgment as to Count I of [Trimble's] amended petition [was] affirmed as to the issue of liability and reversed as to the issue of damages." Trimble I, 51 S.W.3d at 505. To affirm the "issue of liability" on the contract claim as the court did in Trimble I, we necessarily found there was sufficient substantial evidence to support the jury's verdict that Pracna contracted with Trimble and Pracna breached that contract. Thus, the only unresolved contract issue after Trimble I was the question of damages, i.e., what sum would put Trimble in the same position she would have been had Pracna fully performed her obligations under the contract. See Dubinsky v. U.S. Elevator Corp., 22 S.W.3d 747, 752 (Mo.App. 2000). When Trimble amended her petition following our remand of the case in Trimble I, she did not allege anything different concerning the contract terms and the parties' obligations thereunder, nor did she allege anything different about Pracna's breaches of the contract. The allegations of the two petitions regarding contract terms and the breach thereof are exactly alike, as Pracna concedes in the brief filed with this court. Only the damage allegations differ, and those differences are insignificant. Specifically, the Trimble I contract count stated a dollar amount for each itemized special damage claimed and prayed for a total recovery of $181, 525.30 plus attorney fees and interest; whereas, the Trimble II count merely raised the prayer for relief to $350,000 while listing exactly the same items of damage, but did so without assigning a dollar amount to each specifically listed damage

element. It is noteworthy that the increased damage figure in the Trimble II amended pleading referenced by the

determined by the facts stated in the petition and not by the prayer." Cottonhill Inv. v. Boatmen's Nat. Bank, 887 S.W.2d 742, 744 (Mo.App. 1994). I feel strongly that issues about whether there was a contract and whether Pracna breached the contract were settled by Trimble I and were not nullified by the amendment. In my view, to say that the Trimble II amendment raised "new issues" regarding these matters (which is what I understand the principal and concurring opinions advocate) runs counter to established caselaw. In so stating, I do not ignore M & H Ent. v. Tri State Delta Chemicals, 35 S.W.3d 899 (Mo.App. 2001), the case upon which the principal and concurring opinions rely. The situation there is explained by this excerpt from the opinion: "Tri-State's first motion for summary judgment, the one addressed in the prior appeal, was directed to the question of preemption under the FIFRA. The issue was whether federal law precluded an action from being maintained based on state law. This court held that all but one of M & H's claims were based on EPA-approved labeling; that those claims were preempted by the FIFRA. One claim was not. This court held that the trial court could proceed to determine that claim on the basis of Missouri law. The case was remanded as to that claim. On remand Tri-State filed a second motion for summary judgment asserting, as a matter of Missouri law, that M & H was not entitled to recover on its claim of negligent misrepresentation." Id. at 905 (citations omitted). With that as the factual background, this court held: "Tri-State's second motion for summary judgment filed following remand was the equivalent of an amended pleading that introduced a new issue that required different evidence than had been required to address the claim of preemption presented by the first motion for summary judgment. The law of the case as determined by the prior appeal did not preclude the trial court from addressing the issues presented by the second motion for summary judgment." ; Id. at 905-06. Bearing in mind that there were no new issues pled here concerning the contract's existence or its breach, the M & H case simply does not support what has been said by the principal and concurring opinions. M & H stated and applied a sound principle of law under the facts of that case, namely, that "[t]he law of the case doctrine . . . does not apply to new issues introduced following remand by amended pleadings." Id. at 905. However, that principle of law simply has no application here. This follows because the subject matter to which the law of the case applied (whether there was a contract and a breach thereof) was not altered by the amendment. Since the amendment presented no new issues about

contract existence or contract breach, no different evidence was required in Trimble II to address those issues. Consequently, the M & H rule has no application here. For the reasons given, I would not have addressed the "nullification" by amendment issue. Even so, it has now become an issue; consequently, I would hold that Trimble I settled issues favorably to Trimble regarding the existence of a contract and its breach. Next, I disagree with the principal opinion's holding that "Instruction No. 15 prejudiced [Pracna] in that it permitted the jury to award Trimble damages for breach of contract and fraud based upon the same set of operative facts, thereby giving Trimble a windfall and double recovery." As I understand it, the principal opinion presupposes that the "same set of operative facts" necessarily led to double recovery; that Trimble was precluded from asserting a cause of action in tort (fraud) merely because the gravamen of her complaint was for breach of contract. I am not persuaded Trimble was precluded from splitting her claim into one for breach of contract and one for fraud, provided she did not seek nor receive double recovery for the same item of damage. In Hall v. W.L. Brady Investments, Inc., 684 S.W.2d 379 (Mo.App. 1984), plaintiffs alleged the loan-broker defendant had breached a contract to provide real estate construction loan financing. The following from Hall demonstrates its factual similarity to this case and, in my view, supports my departure from the principal opinion: "The ultimate submission to the jury was in two branches. In the first, the cause of action was breach of contract upon the claim that Brady violated its letter of commitment to fund the mortgage loan. Damages sought were those attributable to the subsequent rate differential and the expenses associated with the replacement loan. The lost commitment fee paid [by plaintiff's to] Brady was expressly excluded from the jury's consideration in calculating breach of contract damages. In the second branch, the cause of action was in tort against Brady and Capitol [a firm that had agreed in writing to purchase Hall's loan, which had been negotiated by Brady as an intermediary] for conversion of the $14,600 commitment fee. The jury was instructed that a verdict for plaintiffs on the tort count would require an award of actual damages of $14,600.00. The second branch of the submission also included a claim for punitive damages to be awarded if the jury found the conversion of the fee to have been willful, wanton or malicious. The jury did so find returning verdicts for both actual and punitive damages. . . . . "Brady contends respondents impermissibly split their cause of action for breach of contract by the artificial creation of a tort claim to be used as a vehicle for submission of punitive damages. They argue that respondents had only one cause of action and that the unrefunded commitment fee was at most an item of damage recoverable for breach of contract.

Respondents argue, to the contrary, that they were entitled to submit different theories of recovery for different elements of their damage so long as there was no dual recovery. "In considering this aspect of the case, it is first appropriate to observe that respondents were not necessarily precluded from asserting a cause of action in tort merely because the gravamen of their complaint was breach of contract. While the general rule is that punitive damages are not recoverable for breach of contract, an exception to the rule allows punitive damages when plaintiff alleges and proves an independent and willful tort founded on breach of contract. Stamps v. Southwestern Bell Telephone, 667 S.W.2d 12 (Mo.App. 1984). Respondents here sued both in contract and in tort for separate damages, obviously for the purpose of seeking punitive damages. That choice is not necessarily flawed merely because all damages originated in breach of the commitment agreement." Id. at 382-83. Although the Hall court reversed the judgment on the tort claim, it was not reversed because plaintiffs sued both in contract and in tort. Reversal occurred because "there was no allegation that the fee was paid over to Brady as a special deposit or for a specific purpose . . . nor proof that Brady diverted the funds to another or different purpose[;]" consequently, the elements of a conversion claim were not proven. Id. at 384. Relying on Hall, I would hold Trimble's decision to sue both in contract and in tort for separate damages and then submit both claims to the jury, even if done for the purpose of seeking punitive damages, does not mandate reversal; that such choice is not necessarily flawed merely because all damages originated in the breach of the bail bond agreement. Id. at 383. In reaching this view, I necessarily reject the principal opinion's assertion that the trial court erred by failing to "force Trimble to elect a theory of recovery prior to submitting the case to the jury." I certainly agree with the principal opinion's statement that "if the jury found in her favor, Trimble was entitled to be made whole by one compensatory damage award, but not to receive the windfall of a double recovery." I also agree that "[if] the proven damages for both the breach of contract and for the tort are the same, then the damage award merges." Vogt v. Haynes, 54 S.W.3d 207, 211 (Mo.App. 2001). However, an exhaustive review of the record here convinces me Trimble kept her damages segregated, taking great pains to explain to the jury, via evidence and argument, what she was claiming as damages under her contract claim and what she was claiming as damages under her fraud claim. I am equally convinced the jury was not confused, either by the evidence presented or the instructions given, and it understood what damages Trimble was claiming under each count and awarded separate damages without duplication. I reach this conclusion based upon several factors. In closing argument, Trimble carefully outlined the damages she was asking be awarded her under the contract count

and the fraud claim. On her fraud claim, Trimble urged the jury to award damages for the personal time she spent in looking for Heartfelt. Specifically, Trimble outlined to the jury her testimony--which came in without objection--that she spent 713 hours of her personal time searching for Heartfelt for which she sought reimbursement at $30 per hour. She also directed the jury's attention to unchallenged evidence that she spent over 250 hours of her personal time on telephone efforts to locate Heartfelt (also at $30 per hour). (FN1) From the record, it appears the jury used these two items of damage to arrive at the verdict amount on Trimble's fraud claim. (FN2) Moreover, Trimble's lawyer specifically told the jury during his closing argument that "[w]e're not entitled and we're not asking for double damages. That wouldn't be fair. We are only asking, and I've divided it how I think it should be done." Likewise, the jury was specifically instructed not to assess damages under the fraud count that were already assessed under the contract count. We are to presume a jury follows the instructions given it by a trial court. Trimble v. Pracna, 51 S.W.3d at 497. Nothing in the record suggests this presumption has been rebutted. To the extent the principal opinion would hold that reversal is mandated because of the mere possibility that the same damages were awarded under the contract count and the fraud count, I would respectfully disagree. Pracna, being the appellant, bore the burden on appeal to affirmatively show error. Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 906 (Mo.App. 2003). In this, she has failed. If, on the other hand, the principal opinion is saying Trimble could not, as a matter of law, seek some damages on her contract count and others on her fraud count simply because the gravamen of her complaint was for breach of contract, then I respectfully disagree with that notion. As stated previously, it was entirely proper for the trial court to submit both the fraud count and the contract count to the jury so long as the damages were kept separate and distinct. See Schreibman v. Zanetti, 909 S.W.2d 692 (Mo.App. 1995); Kincaid Enterprises, Inc. v. Porter, 812 S.W.2d 892 (Mo.App. 1991); Hall, 684 S.W.2d 379. Further, if the principal opinion is saying that a prohibited potential for double recovery of bounty hunter fees and expenses existed here because (a) Trimble sought those damages under the contract count, and (b) she hypothesized in Instruction No. 15 that one of Pracna's allegedly fraudulent representations was that Pracna would pay bounty hunter fees and expenses, I once again respectfully disagree. Instruction No. 15 did not direct the jury to award bounty hunter fees and expenses if it found Pracna's representations regarding those items were fraudulent; it simply directed the jury to award Trimble any damages she may have sustained because of the falsity of that representation. As stated above, the only damage Trimble asked the jury to award under any of the fraud verdict directors was the time she had expended. Not once did Trimble urge or request bounty hunter fees and expenses as part of the damages for fraud; to the contrary, she

specifically told the jury not to award her anything the jury included as damages on the contract count. Based on an exhaustive review of the record, I have concluded there was substantial evidence of damages and an itemization of those damages sufficient to support the jury's verdict under the contract claim without regard to the damages awarded under the fraud count. I have also concluded there was ample evidence to support each of the verdict- directing instructions on the fraud count; consequently, I would reject Pracna's third point relied on which charges the trial court with reversible error for not granting Pracna's motion for a judgment notwithstanding the verdict. Regarding the claim made in the concurring opinion that the instruction gave the jury a "roving commission in establishing damage awards," I am unable to find in Pracna's brief where the instructions were claimed to be prejudicially faulty for that reason. (FN3) Pracna's fifth point--the one addressed by the principal opinion and apparently by the

"The trial court erred in submitting Instruction No. 15, because Instruction 15 misdirected, misled, and confused the jury and thereby prejudiced . . . Pracna by permitting the jury to return a verdict against her, in that (a) it permitted . . . Trimble to recover damages on her fraud and contract claims despite the fact that the same facts supported each claim, and (b) the requisite elements of falsity, materiality, reliance, and damages were not proven by substantial evidence." Even when charitably read, this point relied on does not bespeak a "roving commission" claim. More than that, the point raises multifarious issues, i.e., it advances more than one claim of error. I would hold that the point preserved nothing for our review. Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 477 (Mo.App. 2001) (holding a statement of a point relied on violates Rule 84.04 when it groups multiple contentions together not related to a single issue, thus preserving nothing for appellate review). See also Thummel v. King, 570 S.W.2d 679, 688 (Mo.banc 1978). Certainly, Pracna's fifth point does not preserve a claim that the instruction gave the jury a roving commission. First, because the principal and concurring opinions reversed, at least in part, due to an alleged instructional error, the following principles should be noted. "The primary goal in instructing a jury is to translate complicated legal concepts into simple, clear and accurate laymen's language so that the jury may understand the factual issues of a claim or defense and act properly in deciding the case." Drury v. Missouri Pacific Railroad Co., 905 S.W.2d 138, 146 (Mo.App. 1995). To promote that goal, Rule 70.02(b) requires jury instructions to be "simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts." Graham v. Goodman, 850 S.W.2d 351, 354 (Mo.banc 1993). When reviewing instructions, if a court finds the goal has been accomplished, then it should credit jurors "with ordinary intelligence, common sense and an average understanding of the English language." Id. at 355. "On appeal a trial court's ruling on an alleged instruction error is not disturbed absent an abuse of discretion." Burns, 55 S.W.3d at 476.

Trimble's approach in this case, i.e., using her closing argument to list the elements of damages on her fraud count and "instruct" the jury in that regard, is precisely the approach approved by the Supreme Court Committee on Jury Instructions. As explained by the Committee, "[i]t now is in the jury arguments that the jury gets its only lucid insight into why it is given any particular instructions." Missouri Approved Instructions (6th ed. 2002), Committee Comments (1996), p. LIII. This concept is more fully explained by the following: "With the required disappearance of argument from the court's instructions, it is in the lawyer's arguments that the jury must now be 'instructed' upon the effect of presumptions, inference, bits of evidence, and the like if it will ever be so instructed. Your attention is called to some concrete illustrations of the importance of 'fleshing out' the instructions by argument. (Emphasis supplied.) . . . . "Examination of MAI 4.01 reveals no listing of the elements of damage. The jury knows of those lawful elements only if counsel tells the jury in argument." (Emphasis supplied.) . . . . "A non-lawyer who reads this monograph might wonder if there is any control over what a lawyer might choose to argue to the jury as controlling rules of law. There is. Each advocate controls the other. The moment an advocate leaves the boundary of the law it is the duty of his opponent to object to misstatement of the law. . . . . "If plaintiff's advocate in a commercial case asks for damages for loss of future profits as an element of damage while the evidence is insufficient to take such calculations out of the realm of speculation, the defendant must preserve the issue with a proper objection. The trial court must rule on the objection and will do so." Milholland, Why and How to Instruct a Jury, Missouri Approved Instructions LXXI-LXXIII (6th ed. 2002). Judicial approval of the Milholland article is found in Crawford v. Smith, 470 S.W.2d 529 (Mo.banc 1971), where the court held: "Defendant does not point to any misdirection in the [MAI-4.01] instruction given and made no effort to obtain a further and more specific instruction. We believe what was said in Boten v. Brecklein (Mo.Sup.), 452 S.W.2d 86, 93, on measure of damages instructions in unusual cases is worth repeating here: " * * * It is a short, simple, general instruction which directs an award which will fairly compensate plaintiffs for their damages. It is contemplated by MAI that where a general instruction of this kind is given the jury will be properly advised by the argument concerning details. If the attorneys disagree as to the elements of and proper measure of damages any questions raised should be settled by the court either

at the instruction conference or by its rulings upon objections made during the course of the argument. No complaint is made as to any ruling of the court concerning the argument relating to damages and we will accordingly assume that no error occurred in that regard. " * * * Moreover, if defendants were of the view that there was no applicable MAI form and that the one offered was too general it was their duty to offer a more specific one." Id. at 533-34 (emphasis supplied). Crawford was a fraud case in which, because of "unusual circumstances," the Supreme Court of Missouri approved use of an MAI 4.01 pattern instruction, rather than MAI 4.03 [Damages-Property- Misrepresentation]. (FN4) Here, as in Crawford, Pracna's damage instruction on her fraud count (Instruction No. 18) tracks MAI 4.01, the only difference being the instruction here contains a "tail." Specifically, the instruction reads: "If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe she sustained as a result of the conduct of . . . Pracna mentioned in Instruction Numbers 13 or 14 or 15 or 16 or 17. "You may not assess any damages on Verdict Form B, which you already have assessed on Verdict Form A, or which is referred to in Instruction No. 11."(FN5) Here, as in Crawford, the defendant Pracna did not object to this damage instruction as tendered and given, nor did she make an effort to obtain a further or more specific instruction. This hardly seems surprising since Instruction No. 18 clearly achieved the primary goal for instructing a jury, i.e., it translated a complicated legal concept into simple, clear and accurate laymen's language so that the jury could act properly in deciding the case. Drury, 905 S.W.2d at 146. More than that, once Trimble's lawyer began "fleshing out" the instructions via closing argument and telling the jury what element of damage they should consider under the fraud count--a practice approved by the committee on instructions and by the Crawford court--Pracna stood silent. She made no effort to "control" the argument by objection or maintaining that Trimble was misstating the law. It was her duty to do so and having not done so, this court should not convict the trial court of a belated claim of instructional error. Crawford, 470 S.W.2d at 534. To the contrary, we should presume that no error occurred in that regard. Id. In so stating, I acknowledge that Pracna did object to all of the fraud claim verdict-directing instructions. It should be noted, however, that every verdict-directing instruction given on the fraud count (including Instruction No. 15) tracked MAI 23.05 (the pattern verdict director for fraudulent representations). It is not surprising, therefore, that for the most part Pracna's at-trial objections to the fraud verdict-directing instructions were that there was insufficient evidence to support

their submission. As to Instruction No. 15, Pracna made the additional objection that bounty hunter fees and expenses "were part of the indemnity contract . . . and so therefore . . . could not be a subject for a claim of fraud," and "it's clear that there is no damage here because again that's covered by the bail bond contract and the fact is she didn't pay any fees and she did pay expenses which have been paid by Ms. Pracna." Arguably, these latter two remarks may have been sufficiently specific to preserve a claim that it was error, as a matter of law, to allow Trimble to split her damage claim--an argument which has no merit for reasons stated above. However, the two comments were not sufficiently specific to support the claim she now makes on appeal, i.e., Instruction No. 15 "misdirected, misled and confused the jury." See Rule 70.03 (stating "[c]ounsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto . . . stating distinctly the matter objected to and the grounds of the objection ") (emphasis supplied). Where an alleged error regarding an instruction differs from the objections made to the trial court, the error may not be reviewed on appeal. Daniels v. Board of Curators of Lincoln University, 51 S.W.3d 1, 11 (Mo.App. 2001). The foregoing is reason enough for not agreeing with the result reached by the principal and concurring opinions. More than this, however, it is axiomatic that instructions must be considered and read together when assessing any claim of error. AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2 256, 262 (Mo. App. 1996). The question here is whether the jury, after reading Instruction Nos. 15 and 18, could believe (as Pracna implicitly argues) it was permissible to award the same element of damages under both the contract count and the fraud count. Reading the instructions together, it seems to me abundantly clear that no jury of ordinarily intelligence, possessed of common sense and an average understanding of the English language, would be misled or misdirected as Pracna's claim suggests. I am confirmed in this view by the fact that Trimble "fleshed out" for the jury during closing argument--without objection from Pracna--what she was claiming as damages and then emphasized to the jury it should not include the fraud damages as an element of the contract damage award. I am not persuaded this jury was misled or misguided by the instructions given them. I would hold there was no misdirection of this jury by Instruction No. 15 and the trial court did not abuse its discretion by giving this instruction. I would affirm the judgment of the trial court. (FN6) Footnotes: FN1. This damage evidence and counsel's jury argument about it were never objected to at trial. A litigant's failure to object to testimony, evidence, or argument preserves nothing for appellate review. Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo.banc 1993). In pointing to this evidence, I do not ignore n.10 of the principal opinion. There, it is said the problem

with this evidence is not its admissibility, but its submissibility; that Point III of Pracna's brief (charging trial court error for not sustaining Pracna's motion for judgment notwithstanding the verdict) has merit. I respectfully disagree. "The purpose of an award of damages it to make the injured party whole by monetary compensation." Turner v. Shalberg, 70 S.W.3d 653, 658 (Mo.App. 2002). Despite the preference for one measure of damages over another based on the type of action brought, the particular facts of each case determine which measure of damages is to be used. White v. Marshall, 83 S.W.3d 57, 62 (Mo.App. 2002). A person defrauded may be entitled to compensation for incidental losses and expenses suffered as a result of a defendant's misrepresentations. Schroeder v. Zykan, 255 S.W.2d 105, 110 (Mo.App. 1953). Trimble's fraud verdict directors hypothesized, inter alia, that Pracna's fraudulent misrepresentations induced the bail bond transaction. The bond contract had an "any and all" damages provision, that is, it broadened the scope of damages beyond those that might generally have been recoverable. See Centerline Inv. Co. v. Tri-Cor Industries, 80 S.W.3d 499, 503 (Mo.App. 2002). Under the circumstances, Trimble was entitled to recover "consequential damages," that is, those which were "'within the contemplation of the parties at the time of contracting or "foreseeable" to them.'" Id. (Citations omitted.) An "appellate court, as a matter of law, passes upon" the question of whether a plaintiff has presented substantial evidence to support the case but does not pass upon the matter of credibility. Keller v. St. Louis Butchers' Supply Co., 229 S.W. 173, 175 (Mo. 1921). Credibility assessments are for the jury. Id. I would hold that it was foreseeable by the parties that if Heartfelt absconded, Trimble would spend time hunting him so as to mitigate damages; consequently, Trimble's testimony about personal time she spent looking for Heartfelt was substantial evidence in support of her case. Moreover, this evidence was not speculative, i.e., it was not an estimate of what she would do in the future; it recounted time already spent. The credibility of that testimony--both as to the amount of time and its value--was for the jury to decide. FN2. In urging the jury to award damages on the fraud count, Trimble's counsel asked the jury to consider only three items of damage, i.e., the two mentioned plus an additional 162 hours (at $30 per hour) that Trimble testified she spent in the state of Washington "defending the collateral to make sure it doesn't disappear." As compensatory damages on the fraud count, the jury awarded Plaintiff $28,900. The two damage figures first mentioned (713 hours and 250 hours, each at $30 per hour) totalled $28,890. The ten dollar difference between the proof and award may be explained by counsel's assertion in closing argument that Plaintiff spent 250 hours of personal time on the telephone versus Trimble's testimony that she spent 251 hours and 15 minutes on the telephone. It should be noted that Trimble's claim for damages under this count was for her personal time expended in searching for Heartfelt and not for lost income for the business attributable to time spent in the search. FN3. Point I complains about an oral instruction given the jury, i.e., Pracna owed the balance of the bail bond premium as a matter of law. Point II complains about the trial court's refusal to give withdrawal instruction "B." Point III charges the trial court erred in not granting Pracna's JNOV on the fraud verdict because Trimble allegedly failed to prove each essential element. Point IV maintains reversible error occurred when Instruction No. 13 was given because it was not supported by substantial evidence and it "confused, misled and misdirected the jury in that there was indisputable evidence that [Trimble] knew that Mr. Heartfelt may have used aliases and that fact was not relied upon nor was it material to [Trimble] when she wrote the bail bonds for him." Point VI charges there was error in awarding an "attorney fee of 33 1/2% . . . on the $58,500" voluntarily paid by Pracna. None of these points bespeak a claim that the instructions gave the jury an impermissible roving commission. Moreover, the arguments beneath the points relied on make no such assertion. FN4. Missouri permits the use of instructions based on MAI 4.01 where the peculiar circumstance of the fraud makes the benefit of the bargain rule an inadequate measure of damages. Kerr v. First Commodity Corp of Boston, 735 F.2d 281, 285 (8th Cir. 1984), cited with approval in Dierkes v. Blue Cross and Blue Shield, 991 S.W.2d 662, 669 (Mo.banc 1999). FN5. The referenced Instruction No. 11 was the damage instruction given on Trimble's contract count. FN6. Because the judgment has been reversed, it serves no useful purpose for this dissent to address the additional claims of trial court error that the parties raised in their respective briefs. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.