BLACK RIVER ELECTRIC COOPERATIVE, )
A Missouri Rural Electric Cooperative, )
                                       )
                     Appellant,        )
                                       )
      vs.                              )            No. SD33444
                                       )
PEOPLE'S COMMUNITY STATE BANK,         )            FILED: May 4, 2015
n/k/a PEOPLE'S COMMUNITY BANK,         )
                                       )
                     Respondent.       )

         APPEAL FROM THE CIRCUIT COURT OF REYNOLDS COUNTY

                          Honorable Kelly W. Parker, Judge

AFFIRMED

      Acting as a financing conduit under a USDA loan program, Black River

borrowed $450,000 from the USDA and re-lent it to a Mr. Baker to start a business.

Black River had required a letter of credit (LOC) as loan security; its file contained

one purportedly issued by People’s Bank (Bank).

      When Baker defaulted several years later, still owing $129,000, Black River

made claim on the LOC. Bank disclaimed any knowledge of it and refused to pay.

Black River sued to collect.
      The case was tried without a jury. One contested issue was whether Irv

Ellington (an imprisoned former Bank vice president) had apparent authority to

issue the LOC on Bank’s behalf. 1

      Black River called four witnesses; Bank called five. Neither party requested

findings of fact or conclusions of law. The trial court took the case under advisement

and, according to its judgment, considered witness credibility and all the evidence in

finding for Bank and against Black River.

      On appeal, Black River claims the judgment is against the weight of evidence

and that the trial court misapplied the law. See Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976). Missouri Court Rule 73.01(c) drives us to reject both

assertions and affirm the judgment.

                                       Analysis

      Rule 73.01(c) applies to court-tried cases and requires:

           the trial court, “if requested by a party,” to issue written findings on
            “controverted fact issues specified by the party,” and
           appellate courts to view fact issues without specific findings “as having
            been found in accordance with the result reached” by the trial court.

      Here, no findings of fact were requested or made, so we presume all fact

issues were resolved in Bank’s favor and will affirm if the judgment is correct under

any reasonable theory supported by the record. Frick’s Meat Products v. Coil

Construction, 308 S.W.3d 732, 736 (Mo.App. 2010).



1 It was stipulated that Ellington lacked express authority to do so. Other contested
issues Black River needed to win to prove its claim included genuineness of
Ellington’s signature and whether the LOC secured Baker’s loan. We need not reach
the latter issues given our disposition as to apparent authority.
                                            2
      Ellington’s apparent authority was an issue of fact. Robertson Canning

Co. v. Davis, 15 S.W.2d 882, 883 (Mo.App. 1929). See also Masek Distributing

v. First State Bank & Trust, 908 F. Supp. 856, 862 (D. Kan. 1995) (question of

fact whether assistant vice president of bank had apparent authority to issue LOC);

Thomas Register v. Proto Systems Elec. Packaging, 471 S.E.2d 235, 236

(Ga.App. 1996) (vice president’s apparent authority was fact question). We presume

Ellington was found to lack such authority. Rule 73.01(c).

      The weight of evidence showed otherwise, urges Black River.

      We disagree. Proof on this contested fact issue involved witness testimony, the

party with the burden of proof lost, and no findings of fact were requested. “A party

who fails to [request findings of fact] forfeits that advantage on appellate review,

because the trial court’s findings are considered as having been found in accordance

with the judgment.” Pearson v. Koster, 367 S.W.3d 36, 44 n.3 (Mo. banc 2012).

      Without written findings, we lack a nuanced understanding of how the trial

court weighed the testimony and evidence on this contested issue. In civil cases as in

criminal, a fact-finder “always can disbelieve all or any part of the evidence, just as

it always may refuse to draw inferences from that evidence.” State v. Jackson, 433

S.W.3d 390, 392 (Mo. banc 2014). Credible, believable, even uncontradicted proof of

evidentiary facts may not prove a contested issue of ultimate fact to the fact-finder’s

satisfaction. A party with the burden of proof cannot merely offer a submissible case;

it must “convince the fact-finder to view the facts favorably to that party.”

Letterman v. Director of Revenue, 412 S.W.3d 459, 464 (Mo.App. 2013). This



                                          3
is because “evidence never proves any element until the [fact-finder] says it does.”

Jackson, 433 S.W.3d at 392.

       So we fall back on this rule: Defer to the trial judge. He was “in a better

position to weigh the contested and conflicting evidence in the context of the whole

case.” Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). He could “judge

directly not only the demeanor of witnesses, but also their sincerity and character

and other trial intangibles that the record may not completely reveal.” Id. We defer

both to express findings and those supplied by Rule 73.01(c). Id.

       This dooms Black River’s against-the-weight challenge. This court “will not re-

find facts based on credibility determinations through its own perspective.” Id. If we

resolve “all conflicts in testimony in accordance with the trial court’s credibility

determinations, whether explicit or implicit” (Houston v. Crider, 317 S.W.3d 178,

187 (Mo.App. 2010)), we cannot find the weight of evidence on Black River’s side of

the scale.

       This trial court listened to and observed nine witnesses, and according to its

judgment, considered “all of the evidence” and “credibility of all of the witnesses” in

reaching its decision. What was said in Pearson, 367 S.W.3d at 41, also fits here:

             This Court further holds that the plaintiffs do not prevail on their
             claim that the trial court’s judgment is against the weight of the
             evidence. This Court generally refuses to substitute its opinion for
             that of the trial court on disputed factual issues by re-weighing the
             evidence in a court-tried case.… The trial court made credibility
             assessments and weighed the evidence at trial in reaching its
             judgments. Because this case involves judgments for the defendants,
             who have no burden of proof, and because neither party requested
             findings of fact that would assist in appellate review, this is not a
             case in which this Court should substitute its judgment for that of
             the trial court on the evidence regarding disputed factual issues.

                                             4
We reject Black River’s claim that the weight of evidence compelled the trial court to

find Ellington’s apparent authority was proved.

      Alternatively, Black River claims the trial court misapplied the law on

apparent authority. “The trial court erred in applying the law to the facts,” argues

Black River in a complaint that misses the mark.

      It is this court that considers apparent authority unproven, per Rule 73.01(c),

after Black River elected not to obtain the trial court’s finding. Having foregone its

right to know what the trial court found, Black River forfeits that advantage in this

court (Pearson, 367 S.W.3d at 44 n.3), where it now must overcome a rule-required

adverse finding. 2

      The apparent authority “finding” we consider is the rule-driven result of Black

River’s trial strategy, not legal error by the trial court as Black River’s point claims.

“We will not convict a trial court of an error it did not commit.” Hunt v. Hunt, 65

S.W.3d 572, 577 (Mo.App. 2002).

                                     Conclusion

      On the issue of apparent authority, Black River’s points fail. We need not

reach other claims or arguments. We deny all motions taken with the case and affirm

the trial court’s judgment.


DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

WILLIAM W. FRANCIS, JR., PJ/CJ – CONCURS

2We do not criticize this strategy, which Bank also employed. Had Black River won
at trial, it would enjoy the appellate advantage.
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