Clean Uniform Co. v. Magic Touch Cleaning

• Citation: 300 S.W.3d 602
• Decision Date: 29 December 2009
• Docket Number: No. ED 92657.,ED 92657.
• Parties: CLEAN the UNIFORM COMPANY ST. LOUIS, Plaintiff/Respondent, v. MAGIC TOUCH CLEANING, INC., Defendant/Appellant.
• Court: Court of Appeal of Missouri (US)

300 S.W.3d 602

CLEAN the UNIFORM COMPANY ST. LOUIS, Plaintiff/Respondent, v. MAGIC TOUCH CLEANING, INC., Defendant/Appellant.

No. ED 92657.

Missouri Court of Appeals, Eastern District, Division One.

December 29, 2009.

Mark D. Murphy, Jeffrey M. Cook, The Murphy Law Firm, LLC, Overland Park, KS, for appellant.

Henry F. Luepke, The Stolar Partnership LLP, St. Louis, MO, for respondent.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff supplier filed a lawsuit against defendant customer to recover damages for breach of contract. After a bench trial, the trial court entered judgment in plaintiff's favor, awarding $19,011.80 in damages and $10,433.36 in attorney's fees. Defendant appeals. We affirm.

On March 17, 2006, defendant, Magic Touch Cleaning, Inc. (Customer), entered into a thirty-six-month rental service agreement (the Service Agreement) with plaintiff, Clean the Uniform Company St. Louis (Supplier), an industrial launderer located in St. Louis, Missouri. In the Service Agreement, Supplier agreed to provide Customer with shop towels, dust mops, and wet mops on a weekly basis, at rental charges specified in the Service Agreement. Customer agreed to accept all of its requirements for these items only from Supplier. The Service Agreement required Customer to accept and pay each week for a minimum of 50% of the inventory shown as issued, and pay the rental charges for the number of items accepted. Paragraphs 8, 9, and 10 of the Service Agreement provided:

8. Customer acknowledges that Customer's early cancellation of this Agreement will damage Supplier in an amount that is difficult to estimate or calculate accurately. Therefore, in the event of such early cancellation, Customer shall pay Supplier 50% of the average of the weekly rental charges during the preceding 26 weeks (or such lesser number of weeks as have actually elapsed during the term, or, if service has not commenced, the anticipated initial weekly billing) times the number of weeks remaining in the balance of the term, plus all other due and unpaid charges. Customer hereby represents and admits that the amount to be paid under this paragraph 8 are a reasonable forecast of Supplier's actual losses resulting from Customer's early cancellation and are not a penalty. Customer consents to jurisdiction and venue in the County of Supplier's Office. Customer shall be liable to Supplier for all attorneys' and expert witness' fees, expenses and costs incurred in any lawsuit arising out of this Agreement.

9. This Agreement shall be suspended in the event of interruption of service due to strikes, lockouts, and causes beyond Customer's or Supplier's control that affect Customer's or Supplier's business.

10. This Agreement contains the entire understanding of the parties. No representations, warranties, promises or inducements, oral or written, not specifically set forth in this Agreement shall be binding on any of the parties. This Agreement can be amended only in writing signed by both parties. This Agreement is binding upon any successors to the businesses of the respective parties, and the respective parties shall so inform any such successor. Suppliers may assign this Agreement without the consent of Customer. On such assignment being made, Supplier is relieved from any liability which may arise.

At the time Customer entered into the Service Agreement, it was also a party to a one-year janitorial contract with the VA Hospital in St. Louis, Missouri, which had four one-year renewal options. On December 30, 2006, Customer's contract with the VA Hospital expired, and the VA Hospital did not renew it. Customer contacted Supplier and told Supplier it no longer needed Supplier's services because Customer was no longer cleaning the VA Hospital. Supplier stopped providing the service, and Customer stopped making payments.

Thereafter, in April 2007, Supplier filed a lawsuit against Customer to recover a past-due amount, liquidated damages for early cancellation, and attorney's fees. At the bench trial, Supplier adduced evidence that Customer owed Supplier $2,567.45 for services received, and that the amount of liquidated damages calculated under paragraph 8 of the Service Agreement, based on a percentage of the average weekly rental charges and the number of weeks left in the term of the Service Agreement, was $16,444.35. Supplier's counsel testified that his firm's fees for legal services provided in the case were $10,433.36. The trial court entered judgment for Supplier in those amounts.

DISCUSSION

Standard of Review

In this court-tried case, we will affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court on factual issues "`because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.'" Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 652 (Mo. banc 2009) (quoting In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984)). If the trial court does not make findings of fact on a disputed issue, we assume it has resolved the factual dispute in accord with its judgment. KC Excavating and Grading v. Crane Const., 141 S.W.3d 401, 404-05 (Mo.App.2004).

Preservation of Error

An appellant must properly raise errors in the appellate court in order for them to be reviewable. See Rule 84.13(a), which provides:

Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, allegations of error not briefed or not properly briefed shall not be considered in any civil appeal and allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case.

Rule 84.04 contains the requirements for an appellate brief. Compliance with this rule is mandatory "so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant." Rothschild v. Roloff Trucking, 238 S.W.3d 700, 701 (Mo.App.2007).

Rule 84.04(i) requires all factual assertions in the argument be supported by references to the record on appeal. See Pattie v. French Quarter Resorts, 213 S.W.3d 237, 240 (Mo.App.2007). "`References to the record on appeal in the argument portion of the brief provides us the tool with which to verify the accuracy of the factual assertions in the argument upon which a party relies to support its argument.'" Id. (quoting Shaw v. Raymond, 196 S.W.3d 655, 659 n. 2 (Mo.App. 2006)). In the absence of the required references to the record on appeal, the verification process "would require us to search the record to find what we deem supports [an appellant's] factual assertions." Shaw, 196 S.W.3d at 659 n. 2. "This would effectively thrust us into the role of an advocate for [the appellant], a role we cannot take." Id. An appellant's failure to comply with Rule 84.04(i) denies us the ability to provide verifiable appellate review, and, therefore justifies our decision to decline to review the point of error for that argument. Id.

In this case, Customer has not provided references to the record on appeal to support any statement of fact or procedure in the argument portions of its brief under Points I, II, and III, and only one reference to the record under Point IV. While this would justify dismissal of the appeal, we have elected to review points I, II, and IV on the merits because these points are not so fact-dependent that review without the required references to the record on appeal is largely frustrated. However, Customer's argument under Point III is very fact-dependent, and without the required references to the record, we decline to review Point III on the merits.

I. SUSPENSION CLAUSE

In its first point, Customer contends that the trial court erred in concluding that Customer breached the Service Agreement. Customer argues that its loss of its contract with the VA Hospital constituted an interruption of service due to causes beyond Customer's control that affected Customer's business, which caused the Service Agreement to be suspended under paragraph 9 of the Service Agreement. Customer's argument is based on two premises, that an event covered under paragraph 9 occurred and that "suspend" as used in paragraph 9 includes a termination of the Service Agreement. We do not reach the issue of the meaning of "suspend," because the non-renewal of the VA Hospital contract was not an event covered under paragraph 9 of the Service Agreement.

To support its argument that an event covered under paragraph 9 occurred, Customer reasons that the non-renewal of its VA Hospital contract was a "bargained-for contingency" triggering the suspension of the Service Agreement under paragraph 9. It contends that it did not control whether the VA Hospital contract would be renewed and that the parties intended that the risk of non-renewal would be included in the "causes beyond [the parties'] control" language in paragraph 9 of the Service Agreement. We disagree.

At the time it entered into the Service Agreement, Customer knew that its VA Hospital contract would terminate after one year and would have to be renewed. However, the parties did not refer to the VA Hospital contract in the Service Agreement. Further, the parties did not expressly make the Service Agreement subject to suspension or cancellation if the VA Hospital contract was not renewed, although the Service Agreement did expressly list other events, namely, "strikes" and "lockouts," that would cause suspension. Finally, although Customer negotiated...