Heritage Roofing, LLC v. Fischer

• Decision Date: 24 May 2005
• Docket Number: No. ED 84390.,ED 84390.
• Citation: 164 S.W.3d 128
• Parties: HERITAGE ROOFING, LLC, Respondent, v. Martin FISCHER, Appellant.
• Court: Missouri Supreme Court

164 S.W.3d 128

HERITAGE ROOFING, LLC, Respondent, v. Martin FISCHER, Appellant.

No. ED 84390.

Missouri Court of Appeals, Eastern District, Division Three.

May 24, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brian D. Klar, St. Louis, MO, for appellant.

Mitchell D. Jacobs, St. Louis, MO, for respondent.

OPINION

GLENN A. NORTON, Judge.

Heritage Roofing, LLC sued Martin Fischer, seeking to recover money owed for roofing work that Heritage had performed at Fischer's request. Heritage filed a suit on account, but following a bench trial, the trial court amended the pleadings to conform to the evidence and entered judgment in favor of Heritage on a breach of contract theory. It awarded damages, attorney fees and interest. Fischer appeals. We affirm.

I. BACKGROUND

At Fischer's request, Heritage sent Fischer a document that outlined its proposal to repair the roof of each of several historic buildings that Fischer owned for a total price of $24,500. This written proposal described the work to be done and provided for the collection of interest and attorney fees in the event that Fischer failed to pay. Fischer spoke with Heritage's manager and orally agreed to have Heritage perform the roofing work. But Fischer never signed the written proposal, and the parties never specifically discussed the provisions relating to interest and attorney fees.

Heritage completed the work, but accidentally caused some damage to one of the buildings when its truck collided with a decorative terra-cotta building tile, creating "a domino effect" that resulted in further damage. Heritage purchased some new fiberglass replica tiles and offered to have them installed in place of any original tiles that could not be salvaged or repaired, which it claimed would cost approximately $750. Fischer refused and instead decided to sell the buildings. But the new owners purchased the tiles from Heritage and installed them. Although Fischer made several payments to Heritage for the roofing work, he never paid the final invoice for $9,200.

Heritage sued Fischer in the associate division of the circuit court of St. Louis County, seeking to recover the balance owed on this final invoice plus interest. Heritage filed a suit on account and did not allege the existence or breach of any contract. Fischer filed no answer, affirmative defense, or counterclaim. Heritage's manager and its primary roofer testified at trial, and Fischer testified on his own behalf. It was undisputed that the roofing work was completed and that Fischer paid for all but $9,200 of the work. Instead of disputing those charges, Fischer claimed that he sold the buildings at a loss due to the damaged tiles, which Heritage would not replace with like materials, and he estimated that this loss exceeded his debt to Heritage. Fischer presented no other witnesses or evidence regarding the value of the building or the damaged tiles.

The parties did not request or expressly consent to an amendment of the pleadings, but in its judgment the trial court found that "neither party would be surprised by permitting the pleadings to be amended to conform" to the evidence presented at trial and that "justice so requires." The court found that the parties had entered into a binding oral contract based upon the terms and conditions of Heritage's written proposal. It ordered Fischer to pay Heritage $9,200 in actual damages, but subtracted $750 to reflect the estimated expense of replacing the damaged tiles. It awarded Heritage $3,550 in interest (at one percent interest per month) and $4,000 in attorney fees (one third of the combined total of damages and interest).

II. DISCUSSION

Our review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32. Substantial evidence means "competent evidence from which the trial court could reasonably decide the case." Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo.App. W.D.2001). We exercise our power to set aside a judgment on the basis that it is "against the weight of the evidence" with caution, and only upon "a firm belief that the decree or judgment is wrong." Murphy, 536 S.W.2d at 32. We view the evidence and reasonable inferences from that evidence in a light most favorable to the judgment and disregard contrary evidence. Kaelin v. Kaelin, 988 S.W.2d 657, 660 (Mo.App. E.D.1999). We defer to the trial court on the credibility of witnesses, and the trial court is free to believe all, part, or none of a witness's testimony. State ex rel. Moore v. Brewster, 116 S.W.3d 630, 639 (Mo.App. E.D.2003).

A. Amendment of the Pleadings

Fischer argues that the trial court erred in amending Heritage's petition from a suit on account to a breach of contract claim. Heritage responds that the pleadings were amended to conform to the evidence presented, which in this case supported the existence of an oral contract embodying the terms of Heritage's written proposal.

Rule 55.33(b)¹ permits the amendment of pleadings to conform to the evidence presented when issues not raised in the pleadings are tried by the express or implied consent of the parties. With respect to trial by implied consent, Rule 55.33(b) "gives direction to the trial court both in situations where no objection is made to evidence of unpleaded facts or claims and in situations where objection is made." Rombach v. Rombach, 867 S.W.2d 500, 503 (Mo. banc 1993).² If there is an objection, then the trial court has substantial discretion in determining whether to allow the pleadings to be amended. Id. at 504.

But where, as here, there is no objection, the trial court's discretion is limited to the determination of "whether the issue was tried by `implied consent' of the parties. If so, the pleadings `shall' be treated as if the issues had been properly raised." Id. at 503 (quoting Rule 55.33(b)). "The implied consent rule only applies when the evidence introduced at trial bears on a new issue and is not pertinent to issues already in the case." Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 714 (Mo.App. E.D.1994); see also Metro Waste Systems, Inc. v. A.L.D. Services, Inc., 924 S.W.2d 335, 339 (Mo.App. E.D.1996). In other words, if evidence that raises issues beyond the scope of the pleadings is relevant to another issue already before the trial court, then failure to object to its admission does not constitute implied consent to amend the pleadings to conform to the new issue.

In this case, the action was brought as a suit on account, but there was evidence tending to show that the parties had entered into an oral contract based upon the terms of the written proposal. Heritage's manager testified that although Fischer never signed the written proposal, he orally agreed to it by telling her "I approve it, I want you to go ahead and do the work." The manager also testified that the written proposal included provisions regarding the payment of interest and attorney fees, but she acknowledged that Fischer never specifically agreed to those terms. Fischer did not object to any of this testimony, nor did he object when the written proposal was admitted into evidence.³ This proposal described the work to be done by Heritage, listed a price of $24,500 and provided for a one percent monthly finance charge and the assessment of attorney fees if Fischer failed to pay for the roofing work. Since Fischer failed to object to this evidence, his consent to amend the petition to allege breach of contract can only be implied if this evidence was relevant solely to the breach of contract claim and not to any other issue that was already before the trial court. See City of St. Joseph v. St. Joseph Riverboat Partners, 141 S.W.3d 513, 516-17 (Mo.App. W.D.2004).

The petition indicated only that the action was a suit on account, and there was no responsive pleading or counterclaim. "A suit on account is an action at law to recover money for services performed or property sold and delivered." Helmtec Industries, Inc. v. Motorcycle Stuff, Inc., 857 S.W.2d 334, 336 (Mo.App. E.D.1993). An action on an account is based in contract; it requires proof of an offer, an acceptance, consideration, the correctness of the account and the reasonableness of the charges. Id. at 335. Specifically, the plaintiff must prove that the defendant requested the plaintiff to furnish goods or services, that the plaintiff accepted the defendant's offer by furnishing those goods or services and that the charges were reasonable. Id.; see also Missouri Approved Instructions — Civil 6th 26.03 (1969 New). If contested, then the plaintiff must also prove that a "meeting of the minds" occurred. Massac Environmental Technologies, Inc. v. Futura Coatings, Inc., 929 S.W.2d 318, 320 (Mo.App. E.D.1996).

Under this theory, the offer was Fischer's request that Heritage furnish roofing services, and the acceptance was Heritage's furnishing those services. Neither the written proposal nor the testimony regarding its provisions for interest and attorney fees relate to these two elements of a suit on account. Nor does this evidence relate to the existence of consideration, the correctness of the account or the reasonableness of the charges. Although the manager's testimony that Fischer orally accepted the proposal may have been relevant to establish that the parties had a meeting of the minds as to the essential terms of their agreement, neither the unsigned written proposal nor the testimony regarding its contents helps establish that both parties assented to the terms of an agreement on which an action on account would be based. Under these circumstances this evidence was not relevant to Heritage's suit on account theory. Nor was it relevant to any other issue that Fischer raised at trial regarding the damage...