Hutchens v. Burrell Inc., WD 72838.

CourtCourt of Appeal of Missouri (US)
Citation342 S.W.3d 399
Docket NumberNo. WD 72838.,WD 72838.
PartiesMelissa HUTCHENS, M.D., Respondent,v.BURRELL, INC., Appellant.
Decision Date14 June 2011

342 S.W.3d 399

Melissa HUTCHENS, M.D., Respondent,
BURRELL, INC., Appellant.

No. WD 72838.

Missouri Court of Appeals, Western District.

June 14, 2011.

[342 S.W.3d 400]

H. A. Walther, Columbia, MO, for Appellant.Mariam Decker and Bruce Farmer, Columbia, MO, for Respondent.Before Division IV: LISA WHITE HARDWICK, Chief Judge, Presiding, and KAREN KING MITCHELL, Judge, and DONALD T. NORRIS, Special Judge.KAREN KING MITCHELL, Judge.

This is a contract case. The plaintiff pled that she and the defendant agreed that she would provide the defendant services at a specified hourly rate. She did not plead a contract containing an open price term, nor did she ever plead a right of recovery in quantum meruit. At trial, the plaintiff admitted that she and the defendant never agreed that she would be paid a specified hourly rate for her services. The issue is whether the plaintiff made a submissible case, given that (1) she did not prove the contract that she pled; and (2) she never amended her pleadings. We hold that she did not make a submissible case in that, in a contract case, the plaintiff must recover on the contract she pled. Therefore, we reverse and enter judgment for the defendant.

Facts and Procedural Background1

During the relevant period, Respondent Melissa Hutchens was a psychiatrist participating in the University of Missouri School of Medicine (“University”), Department of Psychiatry's Residency Training Program. Appellant Burrell, Inc., is a mental health services provider that maintains a facility in Columbia, Missouri.

Hutchens entered into a contract with Burrell to work as a psychiatrist one evening per week and on some Saturdays. The parties referred to these services as “moonlighting” work. Burrell agreed to pay (and did pay) Hutchens $70 per hour for these services. Hutchens also provided “residency services” at Burrell, for which the University compensated her. Neither the moonlighting services nor the residency services are the subject of the parties' controversy.

Regulations permit “Advanced Practice Nurses” (“nurse practitioners”) to provide mental health services without direct supervision, so long as a psychiatric doctor is close by and available to be reached via telephone. Hutchens and Burrell entered into a separate oral agreement by which Hutchens agreed to provide medical supervision for Burrell's nurse practitioners (“on-call supervision services”), and Burrell agreed “to compensate” Hutchens for those services. The on-call supervision

[342 S.W.3d 401]

services are the subject of the parties' dispute.

Hutchens did not expect Burrell to compensate her for her on-call supervision services through the payment of money. Burrell partially compensated Hutchens for on-call supervision services by funding Hutchens's trip to a conference in Boston. The value of the trip was approximately $4,000. Hutchens also expected other compensation as could be agreed upon in the future.

Hutchens signed an employment agreement with Burrell in which she was to begin full-time employment with Burrell after her residency training had ended. Pursuant to that agreement, Burrell paid Hutchens a $15,000 signing bonus.

Before she began working full-time for Burrell, Hutchens “resigned.” Burrell demanded that Hutchens repay the $15,000 signing bonus. Hutchens offered to settle the dispute for $13,500, but Burrell refused.

Burrell sued Hutchens for repayment of the $15,000.2 Hutchens asserted a counterclaim, alleging as follows: “[Hutchens] did provide services to [Burrell] ... from May 1, 2008 through June 15, 2009 and provided on-call coverage for Advanced Practice Nurses employed by [Burrell] for a total of 928 hours at an agreed contract rate of $70.00 per hour for a total of $64,960.00 due and owing to [Hutchens].”

At the beginning of the trial, counsel for Burrell made an oral motion in limine to prohibit Hutchens from adducing evidence as to the reasonable value of her on-call supervision services, arguing that Hutchens's claim sounded only in contract and not in quantum meruit.

Specifically, Burrell's counsel argued as follows:

Your Honor, it does appear that the plaintiff is ... going to make an effort to submit on quantum meruit. The reasonable value of the services. That's not been pleaded. And so I would ask the Court to prohibit the plaintiff from offering any evidence of the reasonable value of the services, because she hasn't pled it, we're not prepared to defend on that, and it's extremely prejudicial to my client, who has come here expecting to try a breach of contract case, not a quantum meruit case.

Hutchens's counsel responded as follows:

[B]ecause the nature of the contract, which will be in evidence, does not state the value of the services, I'm allowed to put on evidence of what the value of those services are. I'm not bound by my $70 that I pled. I simply put [Burrell] on notice as to what the reasonable value—one reasonable value could be.

The trial court sustained Burrell's motion.

During trial, Burrell reiterated its objection to “any evidence that is brought into this trial that is outside the scope of the pleading.” Burrell objected to the presentation of “any evidence as to compensation due under [the subject] agreement, other than what they pled, which was $70 an hour.” The trial court sustained the objection.

Hutchens testified as follows:

Q: [Y]ou expected to be compensated for your time; correct?

A: Yes.

Q: And you had—had you reached an agreement on exactly what amount would be or how much per hour, or was that something you were negotiating?

[342 S.W.3d 402]

A: That was something that we had open negotiation about....


Q: Did you expect a paycheck on a week-to-week or every-two-week basis when you first started on-call services?

A: No.

At the close of Hutchens's case-in-chief, Burrell moved for directed verdict. Burrell argued that Hutchens could not recover in that she had not proved the contract she had pled. The trial court denied the motion.

Burrell recalled Hutchens, who again testified as follows: “I did not expect to be paid money for collaboration with nurse practitioners. I expected to be compensated.... [Burrell] told me I would be compensated and that we would find other ways to do that compensation.” She testified further:

Q: [I]f you didn't know how you were going to get paid or what you were going to get paid, there was no agreement with Burrell, was there?

A: There was an agreement, that I would be compensated.


Q: There was no agreement with respect to how much you were going to get paid or when you were going to get paid. Isn't that true?

A: There were no details like that, that is true.

Hutchens testified that one of the ways Burrell compensated her for supervising nurse practitioners was by sending her to the conference in Boston. She also testified that Burrell compensated her when she signed the employment agreement, which included a higher signing bonus than beginning psychiatrists normally received.

Hutchens then sought leave of court to amend her pleading to allege a claim sounding in quantum meruit. The trial court denied that request.

Burrell moved for directed verdict at the close of all of the evidence, again arguing that Hutchens had not proved the contract that she had pled. The trial court denied the motion.

Hutchens submitted a jury instruction based on Missouri Approved Instruction (“MAI”) 26.02. Burrell objected, arguing that that instruction only applies when the terms of the agreement are not in dispute. The trial court agreed and refused the instruction. Burrell then offered an instruction based on MAI 26.06. The instruction included the “$70 per hour” term. Hutchens objected, arguing that “that's not the evidence.” The court then substituted the “$70 per hour” language with “additional compensation per hour.” Burrell objected to that change. Over Burrell's objection, the trial court submitted the following verdict directing instruction to the jury:

Your verdict must be for plaintiff if you believe:


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    ...'consented to' evidence would have been irrelevant to the issues that were contained within the pleadings." Hutchens v. Burrell, Inc., 342 S.W.3d 399, 404-05 (Mo. App. W.D. 2011) (citing Edna Enters., Inc. v. Spirco Envtl., Inc., 853 S.W.2d 388, 392Page 14 (Mo. App. E.D. 1993) ("The implied......
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    • October 27, 2015
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