Sara Ousley, Plaintiff/Respondent, v. Kathy Casada, Defendant/Appellant.

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: Sara Ousley, Plaintiff/Respondent, v. Kathy Casada, Defendant/Appellant. Case Number: 21910 Handdown Date: 09/29/1998 Appeal From: Circuit Court of Taney County, Hon. James L. Eiffert Counsel for Appellant: Richard L. Schnake and Michael E. Merrell Counsel for Respondent: David L. Smith Opinion Summary: None Citation: Opinion Author: James K. Prewitt, Presiding Judge Opinion Vote: AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS. Crow and Parrish, JJ., concur. Opinion: Plaintiff sought declaratory judgment that she owned certain cattle, ejectment of Defendant from certain real property, and damages of $3,950.00. Defendant counterclaimed, seeking the cattle, five acres of the real property in dispute, and, if denied the five acres, the costs of improvements to it. Following non-jury trial, judgment was entered in favor of Plaintiff, awarding her possession of the real and personal property and a monetary award against Defendant. Defendant was denied relief on her counterclaim. Defendant appeals. Review is under Rule 73.01(c). For interpretation of that rule, see In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App. 1990). "Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses." Rule 73.01(c)(2). No findings of facts were requested or made. "All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(a)(3).

Defendant is the daughter of Charles Ousley, born during a marriage previous to his marriage with Plaintiff. He died before this litigation commenced. Plaintiff is his widow. Defendant asserts the evidence established an oral agreement that she have the five acres and certain cattle. The parties differed as to conditions of the agreement. Defendant's first point contends that the judgment denying her the land and cattle is unsupported by the evidence, or against the weight of the evidence in several particulars. An examination of the record convinces us that, legal issues aside, there were factual issues regarding the agreement which turned on credibility. Therefore, by deferring to the trial judge on credibility, under our limited review, there was no error as alleged in Point I. For her second point, Defendant contends the trial court erred in refusing to admit into evidence a photocopy of a document allegedly signed by her father indicating she was to have five acres and certain cattle. The property in question was acquired after the marriage of Defendant's father and Plaintiff, and the real property and apparently the cattle in question were owned by Plaintiff and the decedent as tenants-by-the-entirety. The document offered was signed only by Mr. Ousley. Plaintiff objected that it was hearsay and not an original document. The trial court excluded the document on the basis that it was hearsay. Defendant agrees it is hearsay but contends that, nevertheless, the document was admissible under Section 491.010.2, RSMo 1994. That section provides: In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, . . . Defendant contends that "the document should not have been excluded as hearsay, in that [Plaintiff] first testified with respect to the terms of the parties' agreement in her direct testimony in her case-in-chief, and her testimony rendered the document admissible under the Dead Man's Statute," the statute above set forth. A prerequisite to an admission of relevant statements by the deceased is that the adverse party shall have testified. Smith v. Christopher, 737 S.W.2d 510, 511 (Mo.App. 1987). By requiring that the party be "adverse," the statute necessarily must mean that the party must be making a claim which would be against the decedent's interest had he lived, or against his estate. See American Family Mutual Ins. Co. v. Miller's Mutual Ins. Assoc., 971 S.W.2d 940, 942 (Mo.App. 1998). Here, as the surviving co- tenant-by-the-entireties with the decedent, Plaintiff was not adverse to him in any legal sense, although her testimony may have conflicted in some particulars with the document tendered. There are also other reasons why there was no error in the trial court's ruling. A photocopy as secondary

evidence is admissible if there is a foundation shown that: "(1) the original is unavailable, (2) the unavailability is not the proponent's fault, and (3) the secondary evidence is trustworthy." State v. Zimmerman, 886 S.W.2d 684, 691 (Mo.App. 1994). As Plaintiff asserts, no such foundation was presented. As the document not signed by both tenants-by-the-entirety, it had no binding effect. See Weatherwax v. Redding, 953 S.W.2d 162, 166 (Mo.App. 1997); Gifford v. Geosling, 951 S.W.2d 641, 644 (Mo.App. 1997). As the document was hearsay and had no legal effect, there was no error in excluding it. For her third point, Defendant contends that the trial court erred in entering a monetary award as part of the judgment against her because she was a debtor in a bankruptcy proceeding, "and the Bankruptcy Court did not lift the automatic stay of 11 U.S.C. section 362(a) for the purpose of permitting Sara to seek, or the trial court to award, a money judgment against Kathy." This point has merit. The Bankruptcy Court allowed the proceedings to continue as to the possession of the real and personal property involved, but it did not authorize proceeding toward a monetary judgment against Defendant. Plaintiff claims the record indicates Defendant waived all protection of the automatic stay, but she had no authority to do so. See Noli v. Comm'nr of Internal Revenue, 860 F.2d 1521, 1525 (9th Cir. 1988); Re Cobb, 88 B.R. 119, 120 (B.C.W.D. Tex. 1988); 9A Am.Jur.2d, Bankruptcy section 1372 (1991). See also In re Just Brakes Corporation Systems, Inc., 175 B.R. 288 (B.C.E.D.Mo. 1994) reversed on other grounds, 108 F.3d 881 (8thCir. 1997); Badger Lumber Co. v. St. Louis-San Francisco Ry. Co., 338 Mo. 349, 89 S.W.2d 954, 955 (1935). The judgment is affirmed except for the provision entering a monetary award against Defendant. That portion of the judgment is reversed and the matter remanded to the trial court for it to amend the judgment by deleting the portions awarding any monetary sums to Plaintiff from Defendant. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.