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Ampleman v. Dish Network Service, LLC

Court of Appeals of Missouri, Southern District, Second Division

April 14, 2015

JOHN AMPLEMAN, Plaintiff-Appellant,
v.
DISH NETWORK SERVICE, LLC, and MILLENNIUM HOME SECURITY, INC., Defendants-Respondents

Page 846

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Bruce E. Colyer, Associate Circuit Judge.

John Ampleman of Chesterfield, MO, Appellant, Acting Pro se.

For Dish Network Service, LLC, Respondent: Ryan C. Bridges of Osage Beach, MO.

For Millennium Home Security, Inc., Respondent: Daniel E. Wilke, James A. Wilke of St. Louis, MO.

Before Rahmeyer, J., Lynch, J., and Burrell, J.

OPINION

Page 847

PER CURIAM.

On application for trial de novo of a small claims case, John Ampleman (" Appellant" ) filed a pro se petition asserting breach of contract and negligence actions against Dish Network Service, LLC (" Dish" ) and Dish's alleged agent, Millennium Home Security, Inc. (" Millennium" ), collectively, " Respondents." The source of Appellant's grievance was the allegedly faulty installation of a satellite dish and receiver, which, according to Appellant, resulted in damages of $300 to the facia of Appellant's house, $175 for the purchase of a replacement receiver, and medical expenses.[1] Following trial de novo, where Respondents appeared but presented no evidence, the trial court granted Millennium's oral motion for a directed judgment and, a few days later, issued a written judgment wherein the trial court ruled in favor of Dish. Appellant raises three points on appeal. We affirm and assess $1,500 in damages against Appellant for frivolous appeal pursuant to Rule 84.19.[2]

Point I

In its judgment, the trial court, among other things, expressly found that Appellant failed to prove damages. In his first point, Appellant contends that the trial court erroneously excluded evidence of damages--specifically, a signed invoice (" Exhibit 14" ) that, according to Appellant, evidenced his purchase of and the amount paid for a replacement receiver. The seller of the receiver, however, was not a party in the underlying lawsuit, and Respondents successfully objected to the admission of Exhibit 14 on the basis of lack of foundation and hearsay. Appellant made no contemporaneous argument in favor of the admission of Exhibit 14 or any offer of proof in response to the trial court's ruling. Although Appellant now

Page 848

suggests, for the first time, that Exhibit 14 was admissible as his business record, " [w]e will not consider arguments not raised below and made for the first time on appeal." Hagan v. Buchanan, 215 S.W.3d 252, ...


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