Opinion
No. WD 63485
October 19, 2004
Appeal from the Circuit Court of Jackson County, Missouri, Honorable Sandra C. Midkiff, Judge.
Frederick H. Riesmeyer, II, Attorney for Appellant — Kansas City, MO.
Rhonda E. Smiley, Esq., Attorney for Respondent — Kansas City, MO.
Before Ellis, P.J., Lowenstein and Ulrich, JJ.
This appeal arises from a dispute involving the jointly-owned property of Dale E. Fredericks and the late Allan R. Carpenter through a limited partnership they formed, Broadway-Washington Associates ("BWA"). At issue is a specific parcel of property Carpenter bought back from BWA. Fredericks later purchased a 10% interest in this parcel, sharing ownership with Carpenter as a tenant in common. Sangamon Associates, Ltd. and Fredericks (collectively referred to as "Sangamon") now challenge the court-ordered partition and judgment resolving numerous partnership disputes surrounding ownership of this property.
When specifically referring to Dale E. Fredericks as an individual, however, he will be denominated as "Fredericks."
STATEMENT OF FACTS
The history, both factually and procedurally, underlying this appeal is vast and complex. Only that most relevant to resolution of the issues at hand will be discussed. A prior recitation of these facts may be found at 112 S.W.3d 112, 113-16 (Mo.App. 2003), where this court dismissed Sangamon's appeal for the lack of a final judgment.
In 1985, Allan R. Carpenter and Dale E. Fredericks formed a Missouri limited partnership, BWA, to acquire, own, and develop real property in downtown Kansas City, Missouri. In doing so, each partner formed his own respective limited partnership to act as a general and limited partner of BWA. Fredericks and his wife formed Sangamon Associates, Ltd.; Allan Carpenter formed The Carpenter 1985 Family Partnership, Ltd. In addition, several other Carpenter entities were involved in different aspects of BWA property acquisitions. Each of these entities, in addition to Allan Carpenter individually and BWA, were named defendants and will collectively be referred to as "Carpenter" unless expressly denominated otherwise.
A complete list of defendants includes: (1) The Carpenter 1985 Family Partnership, Ltd.; (2) Carpenter-Vulquartz Redevelopment Corporation; (3) Allan R. Carpenter; (4) The Marital Community of Allan R. Carpenter and Theodora D. Carpenter; (5) The Carpenter 427 West 12th Street Family Partnership, Ltd.; (6) Golden Gateway Building Co.; (7) DuPage Properties, Inc.; (8) St. Francis Associates, L.P.; (8) Fleishhacker Properties; (9) Mortimer Fleishhacker; and (10) Broadway-Washington Associates, Ltd. After Allan Carpenter's death, Sangamon moved to substitute Carpenter's wife, Theodora Carpenter, as a party in the partition action only.
The BWA property in dispute includes several parcels of land known as "Block 105." Although the parties initially planned to develop this acquisition, the real estate market was poor and, instead, the land was used as a surface parking lot. As a result of the market, BWA began experiencing financial difficulties. In 1988, Allan Carpenter purchased a 63.53% interest in this property in order to prevent BWA from defaulting on its note and to prevent additional capital calls. He subsequently had difficulty repaying the debt on his individually-owned percentage and asked BWA and Sangamon to buy back part of the property. Fredericks purchased 10% through an Individual Retirement Account ("IRA") and obtained ownership as a tenant in common.
Disputes ultimately arose between the parties concerning a failed sale of their jointly-owned property. Allan Carpenter, who had done most of the negotiations for the sale, blamed Fredericks for the failed transaction and sued Fredericks in California. Fredericks, in turn, alleged that Carpenter made defamatory remarks about him, stating that Fredericks had "killed the sale" of the disputed property. This, Fredericks claimed, was relayed to John Carpenter, Allan Carpenter's son, who then relayed the statement to his wife, staff counsel at a major client of Fredericks' law firm. Fredericks asserted that, as a result of these remarks, he was forced to leave his firm. The California court entered summary judgment in favor of Fredericks.
Sangamon then filed this action. The twenty-two count second amended petition included direct and derivative claims for an accounting, a mandatory injunction for production of books and records, breach of fiduciary duty, breach of contract, appointment of a receiver, removal of managing general partner and manager of projects, conversion, constructive trust, civil conspiracy, defamation, and tortious interference with business relations. Carpenter's answer included a two-count counterclaim requesting a partition of real estate and court-supervised winding-up of BWA's partnership affairs. Sangamon and Carpenter's claims involving issues of fact were tried before a jury. At the close of Sangamon's evidence, the trial court entered a directed verdict in favor of Carpenter on Sangamon's civil conspiracy, defamation, and tortious interference counts. It then severed Sangamon's remaining claims and Carpenter's counterclaims and resumed trial without a jury.
The trial court also entered an order for partition with respect to the property owned by Fredericks and Carpenter as tenants in common. A lawfully conducted public judicial sale was conducted at which Carpenter was the highest bidder. Sangamon filed a motion to have the sale set aside. The court granted its motion, finding that the price was grossly inadequate. In order to remedy this disparity, the trial court allowed Carpenter to increase his bid ten-fold before it confirmed the order for sale by partition. Additional facts concerning the sale are set out immediately below in Part I.A of this opinion. When the court ultimately entered a final judgment for partition using the modified bid amount, it also entered judgment on the twenty-two-count petition. This appeal follows.
ANALYSIS
Sangamon appeals numerous portions of the judgment concerning both the partition and partnership claims. All portions of the judgment entered in favor of Allan Carpenter, aside from the partition action, are not appealable. Allan Carpenter died in November 2000. Sangamon only moved to substitute a successor or representative of the deceased regarding the partition. As such, all portions of the judgment entered for Carpenter, individually, on partnership issues are void. Rule 52.13(a)(1). Those resolved in favor of the remaining ten defendants-respondents are reviewable.
I. PARTITION ACTION
In its first point on appeal, Sangamon argues that the trial court erred in entering a final order and judgment of partition of real estate. Specifically, Sangamon claims that (1) the trial court unilaterally set the price of the property without conducting a public judicial sale pursuant to Rule 96, (2) Carpenter failed to plead sufficient grounds for partition in his counterclaim as required by Section 528.010, and (3) unclean hands prevented an equitable remedy. Each of these arguments will be addressed in turn.
All statutory references are to RSMo. 2000 unless otherwise indicated.
A. COMPLIANCE WITH RULE 96
Sangamon first contends that the trial court entered a final order and judgment of partition without strictly following the mandates of Rule 96. An appellate court must affirm a trial court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron , 563 S.W.2d 30, 32 (Mo. banc 1976). This court's review is thus limited to whether the final order and judgment was entered based upon an erroneous application of Rule 96.
Supreme Court Rule 96 and Chapter 528 authorize two methods of partition. Darrington v. George , 982 S.W.2d 823, 825 (Mo.App. 1998). A court may either "partition in kind or may order a sale and division of the proceeds if it finds partition in kind cannot be made without great prejudice to the owners." Id. (citing Rules 96.01 and 96.11). In instances where a partition in kind would be prejudicial, a court orders a public sale; private sales are not permitted. Id. "[A] judgment for partition and an order of sale are interlocutory." Heintz v. Hudkins , 824 S.W.2d 139, 144 (Mo.App. 1992) (citing Smith v. Hackleman , 467 S.W.2d 61, 64 (Mo.App. 1971); Hiatt v. Hiatt , 188 S.W.2d 863, 895 (Mo.App. 1945)). As with all interlocutory judgments, a judgment in a partition action may be modified at any time before the final judgment is entered. Id. (citing Lee's Summit Bldg. Loan Ass'n v. Cross , 134 S.W.2d 19, 22-23 (Mo. 1939)).
Rule 96 describes the manner in which a partition by sale must occur. Specifically, the court must first make an order of sale. Rule 96.19. It then delivers a "certified copy of the sale to the sheriff or commissioner who shall conduct the sale." Rule 96.19. Only after the court confirms the sale of the property and orders the proceeds to be disbursed does the judgment become final. Lester v. Tyler , 69 S.W.2d 633, 638 (Mo. 1934).
A partition in kind occurs in much the same fashion. After determining that a partition in kind would not result in great prejudice to the parties, a court "shall appoint three commissioners . . . to make the partition." Rule 96.12. The commissioners must file a written report with the court following division of the property. Rule 96.15. Like a partition by public sale, final judgment in a partition in kind is not entered until the court confirms the commissioners' report. Lester , 69 S.W.2d at 638.
In this case, the trial court took an action that was not explicitly contemplated by Rule 96. Due to the unusual factual circumstances, the protracted litigation history, and because the trial court's action did not result in prejudice to either party or deviate so far as to disrupt Rule 96's statutory scheme, however, this procedural anomaly is permissible. Make no mistake; although this court does not condone variance in compliance with Rule 96 and cannot ensure that similar deviations will be overlooked in the future, the trial court's reinstatement and confirmation of a prior sale at a higher price does not warrant reversal in this case.
To best understand the situation with which the trial court was faced, a detailed recitation of the events leading up to the final judgment is necessary. The issue of property division arose when Carpenter filed a counterclaim for partition of the disputed property in response to Sangamon's suit for alleged misconduct on behalf of the partnership. Before the court took any action on Carpenter's counterclaim, both parties agreed that the property should be partitioned by sale rather than partitioned in kind. As a result, the trial court entered an interlocutory order of partition and order of sale on April 15, 1999, ordering a public sale pursuant to Rule 96. The sale occurred on June 17, 1999. Carpenter was the only bidder and purchased the property for $3.04/square foot. After the sale had been lawfully conducted, Sangamon changed its position and claimed that the property could, in fact, be partitioned in kind without great prejudice to the parties.
The trial court set aside its interlocutory order of partition and sale despite Carpenter's objections, reasoning "the June 17, 1999 partition sale on the courthouse steps [was] so grossly inadequate as to 'shock' the conscious of the Court, raise a presumption of fraud, and amount to a sacrifice." Inadequate price was the only basis for setting aside the sale; all aspects of the sale were conducted according to Rule 96's mandates. The court also stated that the "dynamics concerning a judicial sale have so changed since initially ordered on April 15, 1999, that it is improvident to dispose of this parcel of property by judicial sale," and consequently ordered a partition in kind on January 10, 2000.
However, before the trial court confirmed the partition in kind and made the order final, it encouraged the parties to settle their disputes. During a settlement-oriented status conference, Carpenter offered to increase his bid from the June 17, 1999 public sale to $32/square foot. Carpenter arrived at this figure by first considering the sums previously offered for the disputed parcel. As these amounts ranged from $32/square foot to approximately $70/square foot, Carpenter instead based his increased offer on the amount for which similar adjoining land had been sold, $42/square foot. He then reduced this amount by $10/square foot to "compensate for expense, frustration, delay, and lost opportunities."
On January 11, 2002, the trial court ultimately entered a final judgment and order of sale, setting aside the January 10, 2000 interlocutory order for partition of kind and reinstating the April 15, 1999 order for partition by sale. In doing so, it increased Carpenter's bid from $3.04/square foot to $32/square foot and confirmed the June 17, 1999 public sale. Although a second sale was never conducted, Sangamon contends that this price modification constitutes a "private sale" prohibited by Rule 96. This court disagrees.
Both the April 15, 1999 order for partition by sale and the January 10, 2000 order for partition in kind were interlocutory in nature. Since the trial court had not confirmed either of the respective orders, it remained free to modify the terms therein until the judgment became final. The January 10, 2000 order setting aside the sale was not a final judgment since it was neither denominated "judgment" or "decree" nor resolved all of the claims, rights, and liabilities of the parties. Rule 74.01. Because the trial court merely increased the amount of a bid placed at a lawfully conducted judicial sale to remedy the inadequate price, a second, "private" sale did not occur.
Furthermore, even though the procedure followed by the trial court was less than conventional, Sangamon was not prejudiced by the resulting outcome. As a result of the modification, Sangamon will receive nearly ten times greater an amount than that which it would have originally received. Moreover, the facts as contained in the record indicate this amount was based on a fair approximation of the value of similarly-located parcels. Although the same result cannot be guaranteed in the future, based upon these extraordinary facts, the trial court's final order and judgment of partition of real estate is affirmed.
B. MO. REV. STAT. § 528.010
Sangamon also contends that Carpenter's Counterclaim for Partition failed to state a cause of action upon which relief could be granted. Specifically, Sangamon argues Carpenter failed to plead sufficient grounds for a partition as required by Section 528.010. This argument is misplaced.
Section 528.010 grants a right of partition to the current holder of an interest in land as against a future interest holder when the immediate estate is burdensome and unprofitable. Missouri courts only apply this statute to partition suits involving life estates and other contingent or future property interest. See, e.g., In re Rose , 113 B.R. 534 (W.D. Mo. 1990); Smith v. Smith , 600 S.W.2d 666 (Mo.App. 1980); Keim v. Mattes , 507 S.W.2d 397 (Mo. 1974). Here, Sangamon and Carpenter both hold a present interest in the disputed property as tenants in common. Consequently, Section 528.010 is inapplicable and Sangamon's claim of error fails.
C. UNCLEAN HANDS
Finally, Sangamon claims that Carpenter's unclean hands should have precluded the grant of partition. It is well settled that "[a] court of equity will not aid a plaintiff who comes into court with unclean hands. One who has engaged in inequitable activity regarding the very matter for which he seeks relief will find his action barred by his own misconduct." Swisher v. Swisher , 124 S.W.3d 477, 483 (Mo.App. 2003). "[T]he doctrine of unclean hands requires that a party coming into a court of equity must have acted in good faith as to the subject matter of the lawsuit." Nelson v. Emmert , 105 S.W.3d 563, 568 (Mo.App. 2003). In order to raise this defense on appeal, however, it must first be preserved in the record below. Artman v. State Bd. of Registration for Healing Arts , 918 S.W.2d 247, 252 (Mo. banc 1996).
Sangamon did not plead the inequitable conduct necessary to establish a reviewable defense of unclean hands. In response to Carpenter's counterclaim for partition, Sangamon asserted an affirmative defense based on unclean hands concerning revenue matters. Sangamon alleged that Carpenter, without authorization, took money from the partnership property and thereafter failed to pay Fredericks a proportionate share, left insufficient funds with which to pay lawful expenses, and excluded Fredericks from sale negotiations. This alleged misconduct has no bearing on whether Carpenter failed to act in good faith with regard to the partition action. As a result, this court cannot assess error to the trial court on an issue that was not properly put before it. Accordingly, Sangamon's argument must fail.
II. PARTNERSHIP CLAIMS
Sangamon also argues that the trial court erred by entering judgment in favor of Carpenter on various partnership issues. Sangamon first contends that the trial court misapplied fiduciary duty law and entered a judgment against the weight of the evidence. Based upon this alleged breach of fiduciary duty, it then claims that a receiver should have been appointed to protect the partnership property. Finally, Sangamon contends that the trial court erroneously granted a directed verdict on its defamation, tortious interference with business relations, and civil conspiracy claims. Each of these claims is brought both by Sangamon individually and on behalf of BWA.
A. FIDUCIARY DUTY ISSUES
Sangamon claims that the trial court erred by entering judgment in favor of Carpenter on Sangamon's claims for breach of fiduciary duty, conversion, and constructive trust. It specifically states that Carpenter engaged in extensive self-dealing, excluded Sangamon from partnership affairs, refused to pay money owed to Sangamon and refused to cooperate in attempts to sell the property. This court disagrees.
The standard of review for court-tried cases requires an appellate court to affirm the judgment unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Murphy , 536 S.W.2d at 32. When the trial court does not make findings of fact, it is deemed to have resolved all factual disputes in accordance with its judgment. Weaks v. Rupp , 966 S.W.2d 387, 392 (Mo.App. 1998). This court will only set aside a judgment, with caution, when it is left with a firm belief that the judgment is incorrect. Austin v. Pickett , 87 S.W.3d 343, 346 (Mo.App. 2002).
In this case, the trial court's precise reasoning in support of its judgment is unknown. Sangamon did not request findings of facts and conclusions of law before introduction of the evidence. Although Carpenter did make a timely request for such findings, they waived their request after the trial court entered an interlocutory judgment primarily in their favor. Under the applicable standard of review, this court is thus bound by the inferences created by the result reached below.
1. Breach of Fiduciary Duty
Sangamon appeals the trial court's finding that no breach of fiduciary duty occurred. Missouri partnership law requires partners to "account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property." § 358.210(1). These requirements do not apply solely to general partnerships; the "rights, powers and restrictions of partners are [equally] applicable to a general in a limited partnership." Anchor Centre Partners Ltd. v. Mercantile Bank, N.A. 803 S.W.2d 23, 31 (Mo. banc 1991); see also § 359.251.
In the case at bar, Sangamon contends that Carpenter, while acting as managing general partner of BWA, engaged in extensive self-dealing, excluded other general partners from partnership affairs, failed to disclose material partnership information and sued his own partnership and then stipulated to a default judgment in his favor. Although Sangamon offers evidence to support its contentions, the record also contains ample evidence to conclude that a breach of fiduciary duty did not occur.
For instance, the trial court found that Fredericks failed to prove by clear and convincing evidence that the alleged oral joint venture existed. Trial testimony also established that Carpenter disclosed the proposed purchase of partnership property to Sangamon. In addition, the trial court found in favor of Carpenter on counts for accounting, breach of contract, and derivative accounting, thereby eliminating each as the basis for a breach of fiduciary duty. Likewise, there was no evidence that Carpenter failed to pay BWA's property taxes or authorized expenses, falsified any billings, or failed to reimburse BWA for personal expenses. Because, after review, this court is not left with the firm belief that an error was committed, the judgment is affirmed.
2. Conversion
An action for conversion may exist when a party is entrusted with money and subsequently misapplies the money. See, e.g., L W Eng'g Co. v. Hogan , 858 S.W.2d 847, 850 (Mo.App. 1993). Here, Carpenter was entrusted with BWA's funds and Fredericks' IRA funds. Sangamon argues that Carpenter's alleged self-dealing, described above, constitutes conversion. It further claims that Carpenter misappropriated partnership funds via undisclosed and unauthorized takings and refused to pay money owed. This court disagrees. Viewing the facts most favorable to the judgment, coupled with the favorable outcome for Carpenter on the breach of fiduciary claims, the trial court did not erroneously enter judgment for Carpenter on the two counts for conversion.
3. Constructive Trust
Sangamon claims that a constructive trust should have been imposed on the funds allegedly taken by Carpenter. However, a constructive trust is an appropriate remedy in situations where funds have been misappropriated by fiduciaries. See State Auto Cas. Underwriters v. Johnson , 766 S.W.2d 113, 124 (Mo.App. 1989). Because judgment was entered for Carpenter on the breach of fiduciary duty and conversion claims, imposition of a constructive trust was not warranted.
B. RECEIVER
Sangamon next contends that the trial court erred by not appointing a receiver. Sangamon argues that the involvement of an independent third person was necessary to protect the jointly-owned property and its assets from Carpenter's alleged breach of fiduciary duty and due to the multiple lawsuits between Sangamon and Carpenter.
On appeal, this court's review is limited to whether the trial court abused its discretion. See Purvis v. Hardin , 122 S.W.2d 936, 940 (Mo. banc 1938). Rule 68.02 and Section 515.240 set forth the circumstances in which a trial court must appoint a receiver. Rule 68.02(a) provides:
Whenever in a pending legal or equitable proceeding it appears to the court that a receiver is necessary to keep, preserve and protect any business, business interest or property, . . . the court . . . may appoint a receiver whose duty it shall be to keep, preserve and protect, to the extent and in the manner that the court may direct, that which the receiver is ordered to take into the receiver's charge.
Since the trial court did not find Carpenter breached his fiduciary duty or otherwise acted against the interest of the partnership, no circumstances existed that necessitated appointment of a receiver. Accordingly, the trial court did not abuse its discretion and properly denied Sangamon's motion for the appointment of a receiver. The judgment is affirmed.
C. DIRECTED VERDICT
Finally, Sangamon contends that the trial court erred in directing a verdict in favor of Carpenter on claims of defamation, tortious interference with business relations, and civil conspiracy. Sangamon alleges error in the exclusion of publication testimony and application of the statute of limitations on the defamation claim. It accordingly argues that if this evidence would have been admitted, the trial court could not have granted a directed verdict on the tortious interference and civil conspiracy claims.
In reviewing the trial court's ruling on defendant's motion for directed verdict, this court "must determine whether plaintiff made a submissible case, and, in so doing, plaintiff is entitled to the most favorable view of all evidence and must be given benefit of all favorable inferences to be drawn therefrom." Boyle v. Colonial Life Ins. Co. of Am. , 525 S.W.2d 811, 815 (Mo.App. 1975). "A submissible case requires substantial evidence for every fact essential for liability." Simpson v. Indopco, Inc. , 18 S.W.3d 470, 473 (Mo.App. 2000). Failure to satisfy the applicable statute of limitations may also prevent a plaintiff from submitting a claim that can withstand a directed verdict. See, e.g., Judy v. Ark. Log Homes, Inc. , 923 S.W.2d 409, 419-20 (Mo.App. 1996). 1. DEFAMATION
Sangamon argues that the trial court erred by excluding deposition testimony offered to prove publication of the statements that formed the basis of its defamation claim. It contends that the evidentiary privileges relied upon by the court to exclude the proffered testimony were inapplicable. In addition, Sangamon also argues that the statute of limitations had not run on the defamation claim since its amendment related back to the original petition. Because the original petition was not included in the legal file, however, this court is unable to evaluate the merits of these arguments. Consequently, the trial court's judgment is affirmed.
As described above, Fredericks and Carpenter have a long history of disputes concerning their involvement in BWA and various partnership matters. The dispute central to the case at bar involved the unsuccessful negotiation and sale of partnership property to Merrill Surls. When the deal failed, Carpenter spread a series of allegedly false statements that accused Fredericks of "killing the sale," which were ultimately communicated to the law firm where Fredericks was a partner. Sangamon used these statements to form the basis of its claim, alleging they caused harm to Fredericks' reputation and deprived him the benefit of public confidence and social associations.
Fredericks testified at trial that he was aware of the alleged statements and their negative effect by at least February 13, 1995. However, his original petition, filed July 31, 1995, did not contain a count for defamation. Sangamon did not include this count until the March 20, 1996 second amended petition, over one year since Sangamon knew of the statements and their effect. In granting a directed verdict for Carpenter, the trial court stated Sangamon had not made a submissible case since (1) the statements were not published to anyone not in a privileged class, (2) the statements were not defamatory, and (3) the action was barred by the statute of limitations. Because resolution of the statute of limitations issue is dispositive, this court need not address the other two.
"Missouri considers statutes of limitations as procedural only and not as substantive law." Consol. Fin. Inv., Inc. v. Manion , 948 S.W.2d 222, 224 (Mo.App. 1997). When dealing with the law of more than one state and faced with potentially conflicting procedural approaches, the law of the forum state applies. See Peoples Bank v. Carter , 132 S.W.3d 302, 305 (Mo.App. 2004). Accordingly, the statute of limitations question will be determined by Missouri law.
Missouri's borrowing statute requires courts to borrow the statute of limitations of the state where the cause of action accrued if the claim would be barred in that state. § 516.190. Here, the allegedly defamatory statements were made, and their effects felt, in California. California's one-year statute of limitations for defamation actions would thus apply. See Cal. Civ. Proc. Code § 340(C). Because the defamation action would be barred in California, since the time at which the count was added plainly fell outside the one-year timeframe, it is likewise barred in Missouri.
Sangamon contends that the statute of limitations had not expired, as the defamation count relates back to the date of the original petition. Missouri's relation-back rule provides that, "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Rule 55.33(c). Although Rule 55.33 is to be liberally applied, "[a]n amendment will not relate back to the filing of the original petition and save a cause of action from a bar of the statute of limitations 'if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment.'" Southwestern Bell Tel. Co. v. Mo. Comm'n on Human Rights , 863 S.W.2d 682, 685-86 (Mo.App. 1993) (quoting Miller v. Werner , 431 S.W.2d 116, 118 (Mo. 1968); McDaniel v. Lovelace , 439 S.W.2d 906, 909 (Mo. 1969)). When relation-back issues are appealed, the appellant must provide a copy of the original petition for the appellate court to conduct a meaningful review. See Rule 81.12(a) (stating "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented").
In this case, due to the omission of the original petition from the legal file, it is not possible to determine whether the defamation action arose out of the same conduct, transaction, or occurrence set forth in the original petition. In its brief, Sangamon claims that the original petition contained "general allegations about the parties' disputes, Carpenter's wrongful acts excluding Fredericks from the Surls negotiations, and so forth." Carpenter states that "the original petition, by its title, sought partnership accountings and production of books and records." Given these discrepancies, this court cannot ascertain whether the proof necessary to the defamation action are the same as that needed to support the general partnership disputes. The directed verdict is, therefore, affirmed.
2. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
Sangamon next argues that directing a verdict on tortious interference with business relations was erroneous. Tortious interference requires proof of (1) a contract or business expectancy, (2) defendant's knowledge of the contract or relationship, (3) breach induced or caused by defendant's intentional interference, (4) absence of justification, and (5) damages. Rice v. Hodapp , 919 S.W.2d 240, 245 (Mo.banc 1996). In order to make a submissible case, a plaintiff "bears the burden of adducing substantial evidence supporting each and every element." Kerr Constr. Paving Co., Inc. v. Khazin , 961 S.W.2d 75, 79 (Mo.App. 1997) (citing SSM Health Care, Inc. v. Deen , 890 S.W.2d 343, 346 (Mo.App. 1994)).
Sangamon did not satisfy this burden. Sangamon contends that Carpenter spread false statements about Fredericks that interfered with Frederick's business relationship with his law firm. The record is devoid of proof in support of the third element, causation. As a result, Sangamon did not make a submissible case and granting the directed verdict was not in error.
3. CIVIL CONSPIRACY
Finally, Sangamon challenges the trial court granting a directed verdict on the civil conspiracy count. Although Sangamon's brief includes this issue in its points relied on, it does not address this alleged error in the body of the argument in its opening brief. "Arguments raised in the points relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review." Luft v. Schoenhoff , 935 S.W.2d 685, 687 (Mo.App. 1996); see also Rule 84.04. Moreover, "[a]rguments omitted from an appellant's initial brief may not be supplied by a reply brief because a respondent has no opportunity to address the argument." Trustees of Green Trails Estates Subdivision v. Marble , 80 S.W.3d 841, 848 (Mo.App. 2002). Point denied.
CONCLUSION
Sangamon did not show that reinstatement of the April 15, 1999 interlocutory order constituted a prohibited private sale. Because it also failed to properly plead the inequitable conduct necessary to establish a reviewable defense, Sangamon's appeal concerning the partition action is not successful. Furthermore, judgment on the various partnership issues must also stand This court is not left with the firm belief that the trial court erred in entering directed verdicts on Sangamon's fiduciary duty claims. It was not necessary to appoint a receiver absent a breach of fiduciary duty or other misdeed against the partnership. Finally, this court agrees that Sangamon did not offer substantial evidence to make a submissible case in its defamation, tortious interference with business relations, and civil conspiracy claims.
Carpenter's Request for Damages for Frivolous Appeal under Rule 84.19 is denied.
The judgment is affirmed.
All concur.