H & B Masonry Inc. v. Davis

• Citation: 32 S.W.3d 120
• Court: Court of Appeal of Missouri (US)
• Decision Date: 13 June 2000
• Parties: (Mo.App. E.D. 2000) . H & B Masonry, Inc., Respondent/Cross-Appellant, v. Larry Davis and Jeff Aubuchon d/b/a Stix & Steins, Respondents/Cross-Respondents and F.F. Kirchner, Inc., Appellant/Cross-Respondent. Case Number: ED76251 & ED76252 Missouri Court of Appeals Eastern District Handdown Date: 0

32 S.W.3d 120 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

H & B Masonry, Inc., Respondent/Cross-Appellant, v. Larry Davis and Jeff Aubuchon d/b/a Stix & Steins, Respondents/Cross-Respondents and F.F. Kirchner, Inc., Appellant/Cross-Respondent.

Case Number: ED76251 & ED76252

Missouri Court of Appeals Eastern District

Handdown Date: 06/13/2000

Appeal From: Circuit Court of St. Francois County, Hon. James E. Pennoyer

Counsel for Appellant: W. Dudley McCarter

Counsel for Respondent: Terry R. Rottler and Jack Davis

Opinion Summary: F.F. Kirchner appeals the trial court's judgment in favor of H&B Masonry Co, Inc. and Larry Davis and Jeff Aubuchon and against Kirchner in the amount of $10,000, arising from a contractual dispute between the parties. H&B filed a cross-appeal, contending that if reversed, either remand for additional evidence or rendition of judgment was appropriate.

REVERSED AND JUDGMENT RENDERED.

Division Three holds: (1) The trial court erred in failing to award H&B damages against Kirchner in the amount of $2,400, the lesser of the diminution-in-value and cost-to-repair measure of damages, and against Davis and Aubuchon in the amount of $7,600. (2) The trial court erred in awarding H&B prejudgment interest given that the measure of damages was uncertain.

Opinion Author: Lawrence E. Mooney, Judge

Opinion Vote: REVERSED AND JUDGMENT RENDERED. Teitelman, P.J., and Sullivan, J., concur.

Opinion:

F.F. Kirchner ("Kirchner") appeals the trial court's judgment in favor of H&B Masonry Co., Inc. ("H&B") and Larry Davis and Jeff Aubuchon ("Davis and Aubuchon") and against Kirchner in the amount of $10,000, arising from a contractual dispute between the parties. According to Kirchner, the trial court: (1) misapplied Missouri law in awarding damages against Kirchner in the amount of $10,000 based upon a diminution-of-value measure of damages; (2) erred in applying the diminution-of-value measure of damages despite a lack of evidence in the record as to the fair market value of the building as constructed; (3) erred in awarding prejudgment interest in that the amount of damages was disputed throughout the litigation, and H&B failed to properly plead or request prejudgment interest; (4) failed to exercise independent judgment by adopting, almost verbatim, the proposed judgment filed by Davis and Aubuchon, without providing notice to or soliciting proposed judgments from the other parties, and because the judgment entered is not otherwise supported by the evidence; and (5) erred in denying Kirchner's motion for change of judge for cause and failing to recuse himself for cause once the case had been remanded .

H&B has filed a cross-appeal, arguing that even if this court reverses the trial court's decision, we should either enter judgment reallocating liability between Davis and Aubuchon and Kirchner or remand the decision to the trial court for the presentation of additional evidence. We reverse and render judgment.

Facts

H&B agreed to provide Davis and Aubuchon certain labor and materials valued at $21,650 necessary to construct a billiard hall and bar and grill. H&B ordered split-faced block, which was to be used on the building's exterior, from Kirchner. After the building was completed, Davis and Aubuchon took possession of the bar and grill, but withheld $10,000 of the agreed upon price due to a dispute over variation in the color of the concrete block used in the building's construction.

In order to collect the withheld $10,000, H&B filed a three-count petition against Davis and Aubuchon and Kirchner. In Count I of its petition, H&B sought repayment of the $10,000 unpaid balance from Davis and Aubuchon for the labor and material provided. H&B alternatively sued Davis and Aubuchon in Count II of its lawsuit for recovery of the $10,000 under a quantum meruit or unjust enrichment theory. H&B also sought to recover against Kirchner in a separate court under a theory of implied warranty contending Kirchner's failure to provide suitable blocks meant that Davis and Aubuchon were not required to pay the $10,000 owed on the account.

At trial, evidence was presented from all three parties regarding the specifications of concrete block ordered by Davis and Aubuchon, which H&B purchased from Kirchner. Mr. Rottler, an H&B representative, testified that he ordered white, split-faced rock from Kirchner. He further stated that he thought Davis and Aubuchon informed him that the building was not to be painted, and that Kirchner was aware of such fact. Les Staggemeier, a Kirchner sales representative, testified that H&B ordered split-faced gray concrete blocks, which could be stained or painted. Moreover, both Mr. Davis and Mr. Aubuchon testified that they wanted the bricks to be uniform in color because he had no intention of painting or staining the bricks.

Evidence was also adduced at trial regarding the estimated cost to repair the discolored bricks. Mr. Rottler testified that he had received a bid of approximately $2,400 to stain the building. Moreover, both Mr. Rottler and Mr. Staggemeier testified that such staining would be a reasonable and appropriate corrective measure to remedy brick discoloration. Mr. Davis and Mr. Aubuchon both testified that they did not want their building to look like the other buildings in the commercial mall area, which appeared to be painted concrete-block buildings. Therefore, Mr. Davis stated that they deducted $10,000 from the project's total cost, which they felt was a fair deduction for the discolored bricks.

The trial court, without a jury, heard the case on October 30, 1997. A proposed judgment, submitted by counsel for Davis and Aubuchon, was adopted by the trial court and a judgment was entered on January 9, 1998. Kirchner appealed, but the appeal was dismissed and the case remanded to the trial court pursuant to H&B's motion for remand given that the judgment was void under section 511.111.2 RSMo. (1994)¹ as it was entered more than thirty days after the matter was tried and submitted to the trial court.

On remand, Kirchner filed a motion for change of judge for cause or for the judge to recuse himself. The trial court denied this motion as well as Kirchner's subsequent requests for leave to file memoranda of law and proposed judgments, and findings of fact and conclusions of law. H&B filed its proposed judgment on April 27, 1999, which was adopted by the court sometime after being submitted, yet was dated April 15, 1999. This judgment was in favor of H&B and against Kirchner in the amount of $10,000. However, the trial court was notified that it had predated the judgment, and a new judgment was entered on May 5, 1999, but with a date of April 27, 1999. This revised judgment again awarded H&B $10,000, but assessed $5,000 in damages against Kirchner and $5,000 against Davis and Aubuchon. Again, the trial court was notified of the discrepancies between the judgments, and thus entered another judgment in favor of H&B on May 5, 1999, assessing the entire $10,000 judgment against Kirchner alone and awarding prejudgment interest on this amount. Kirchner filed this timely appeal, while H&B filed its timely cross-appeal.

Analysis

We review the trial court's judgment pursuant to Murphy v. Carron, and accordingly will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies the law. 536 S.W.2d 30, 32 (Mo. banc 1976). With this standard in mind, we turn to Kirchner's allegations of error.

Points I and II: Correct Measure of Damages

Kirchner's first and second allegations of error contend that the trial court misapplied Missouri law by applying a diminution-in-value measure of damage rather than the preferred cost-to-repair measure of damage, especially where there was substantial credible evidence that the cost-to-repair was significantly less than $10,000 and no evidence was adduced as to the fair market value of the building as constructed. We will address both arguments simultaneously, as both stem from the damages award.

The proper measure of damages is a question of law for determination by the trial court. Gee v. Payne, 939 S.W.2d 383, 385 (Mo.App. W.D. 1997). Questions of law are matters reserved for de novo review by the appellate court, and we therefore give no deference to the trial court's judgment in such matters. Boillet v. Conyer, 861 S.W.2d 152, 155 (Mo.App. E.D. 1993).

In cases involving breach of implied warranty, the theory on which H&B sued Kirchner in Count III of its petition, the court is to apply the lower of the cost-to-repair or diminution-in-value in assessing the amount...