Jake C. Byers, Inc. v. J.B.C. Investments

• Decision Date: 14 July 1992
• Docket Number: No. 59120,59120
• Parties: JAKE C. BYERS, INC., Respondent, v. J.B.C. INVESTMENTS, et al., Appellants.
• Court: Missouri Court of Appeals

Page 806

834 S.W.2d 806

JAKE C. BYERS, INC., Respondent, v. J.B.C. INVESTMENTS, et al., Appellants.

No. 59120.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 14, 1992.

Robert J. Guinness, John Charles Hannegan, St. Charles, for appellants.

Homer N. Mastorakos, Chesterfield, for respondent.

SATZ, Judge.

This is a declaratory judgment action. Plaintiff, Jake C. Byers, Inc., filed the action seeking a declaration of its rights under an escrow agreement and an order releasing the escrow funds. The funds were held by the escrow company, Community Title Company (Community Title), to assure plaintiff's performance of a contract to fill a sewage lagoon. Defendants, a partnership doing business as J.B.C. Investments, filed a counterclaim seeking the escrow funds as well as additional damages caused by plaintiff's alleged breach of contract to fill the lagoon. Community Title "interpleaded" the funds and was discharged from the action.

The case was tried by the court without a jury, apparently, on plaintiff's petition and defendants' counterclaim. The court entered a declaratory judgment releasing the escrow funds to plaintiff and entered a judgment against defendants on their counterclaim.

Defendants appeal. We affirm.

Plaintiff contracted to sell a mobile home park to defendants. Under the contract, plaintiff was obligated to fill a lagoon located on the property, prior to closing. At the time of closing, however, plaintiff had not filled the lagoon. The parties then entered into an escrow agreement in which plaintiff agreed to "fill the sewage lagoon" before April 1, 1985. Plaintiff also agreed to deposit $36,000.00 from the proceeds of the sale of the mobile home park into an escrow account to be held by Community Title. The funds were to be paid to plaintiff on April 1, 1985, unless plaintiff failed to fulfill its duty imposed by the escrow agreement.

The written escrow agreement provided that plaintiff was to "fill the sewage lagoon", and this phrase was defined:

Fill the sewage lagoon is defined by having the lagoon filled with dirt and compressed by a tractor. The parties understand that a portion or all of the fill dirt is to be taken from the existing dirt placed on the property by the developer for the Moscow Mills sewer project, to the extent same is available for use.

Plaintiff hired a contractor who filled the sewage lagoon according to plaintiff's directions. Defendants notified Community Title, however, that they claimed all the escrow funds because plaintiff failed to fill the sewage lagoon "according to the terms of the agreements between [defendants] and [plaintiff]...." Plaintiff demanded that the funds be paid to it because it had fulfilled its obligation under the escrow agreement to have the lagoon "filled with dirt and compressed by a tractor."

Subsequently, plaintiff filed this declaratory judgment action joining defendants and Community Title. Plaintiff requested the court to declare the rights and duties of the parties under the escrow agreement, to find that plaintiff had fulfilled its duties, to order defendants to direct Community Title to disburse the escrow funds to plaintiff, and to order Community Title to disburse the funds to plaintiff. Defendants filed an answer denying plaintiff's allegations and counterclaimed that plaintiff failed to fill the sewage lagoon in "the manner contemplated by the parties" and that plaintiff's work was done in an "unworkmanlike manner". Defendants sought a declaration that they were entitled to the escrow funds as well as damages. On Community Title's request, the court ordered it to deposit the escrow funds in the registry of the court and discharged it. As noted, the trial court released the funds to plaintiff and found against defendants on their counterclaim. This appeal followed.

Procedural Motions

Defendants have filed a motion to supplement their legal file with excerpts from the depositions of three persons, two of whom were witnesses at trial and one who was not. The motion should be granted, defendants contend, because it rectifies an error of the trial court.

At trial, the court sustained the objections of plaintiff's counsel to certain questions asked by defendants' counsel, and, although defendants' counsel asked to make his offers of proof by question and answer, the court directed him to make his offers by narration. Defendants' counsel did so, without objection to the court's direction. The court denied the offers of proof.

After the cause was submitted but before judgment, defendants moved the court "to reopen the evidence ... to receive and rule on offers of proof" in the form of the excerpts from the depositions in question here. That motion was made, as it is here, "to back up defendants' summarized offers of proof" made at trial. The court denied the motion.

The trial court had discretion to grant or deny the motion to reopen the cause for additional evidence. McClendon v. Johnson, 337 S.W.2d 77, 84 (Mo.1960); In Interest of S G., 779 S.W.2d 45, 54 (Mo.App.1989). We find no abuse here.

Plaintiff has filed a motion to dismiss defendants' appeal, or, in the alternative, to strike defendants' brief and supplemental legal file on the ground that defendants improperly refer to and rely on their supplemental legal file which contains the excerpts from the deposition in question. Having denied defendants' motion to supplement the record, we ignored that supplement, and, accordingly, we deny plaintiff's motion as moot.

Failure to State a Claim for Relief

Defendants first contend that plaintiff failed to plead it filled the lagoon in a workmanlike manner and, therefore, defendants contend, plaintiff failed to plead a claim for relief. Defendants admit they did not raise this issue until their post-trial motion, but they contend they may raise the issue of failure to state a claim for relief for the first time in a post-trial motion.

We read plaintiff's petition differently than defendants do. To us, it properly states a claim for relief.

Our Declaratory Judgment Act merely opens the doors of the court to potential parties at a procedural stage prior to the stage at which an action for traditional relief would be justified. Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 694 (Mo.App.1981). Thus, for our purposes here, we shall assume that the allegations plaintiff was required to plead in this declaratory judgment action were essentially no different than those required for a breach of contract action.

The contract here is a contract to perform work, and, in every contract to perform work, there is an implied promise the work will be done in a workmanlike manner. Baerveldt & Honig Construction Co. v. Szombathy, 365 Mo. 845, 289 S.W.2d 116, 118 (1956); Pitzer v. Hercher, 318 S.W.2d 397, 399 (Mo.App.1958); see, e.g., Buder v. Martin, 657 S.W.2d 667, 669 (Mo.App.1983). Moreover, in an action for breach of such a contract, the plaintiff has the burden of proving it fulfilled this implied promise, Koepke Excav. & Grading Co. v. Kodner Devel. Co., 571 S.W.2d 253, 257 (Mo. banc 1978) and the plaintiff's verdict director must require the jury to find the work was performed in a workmanlike manner. Id. at 256. Thus, for our purposes here, we shall also assume that it was essential for plaintiff to plead it performed the work in a workmanlike manner in order to state a claim for relief for breach of contract. See, Bethell v. Porter, 595 S.W.2d 369, 374 (Mo.App.1980).

Admittedly, a pleading may be challenged for failure to state a claim for the first time after trial or on appeal. E.g., Dakin v. Greer, 685 S.W.2d 276, 278 (Mo.App.1985). But, a primary purpose of pleading is to define and isolate the issues for the parties and the trial court. Pillow v. General American Life Insurance Co., 564 S.W.2d 276, 280 (Mo.App.1978). For this reason and also, perhaps, for an unstated concern for simple fairness, a petition challenged for failure to state a claim for the first time after trial or on appeal is said to be viewed differently than one challenged at the earliest or earlier stage of the trial process. Thus, our courts say or imply that a petition so challenged for the first time on appeal is more liberally construed than one challenged by a motion to dismiss, Baugher v. Gamble Const. Co., 26 S.W.2d 946, 949 (Mo.1930); Schell by Schell v. Keirsey, 674 S.W.2d 268, 273 (Mo.App.1984), is aided by the defendant's answer, which may be treated as supplying the allegations missing from the plaintiff's petition, e.g., Valleroy v. Southern Ry. Co., 403 S.W.2d 553, 556 (Mo.1966), and is aided by evidence introduced at trial without objection, which also may be treated as supplying the missing allegations. See, e.g., Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 22 (Mo. banc 1983).

Here, however, we do not choose to use any of these principles and, thus, neither endorse nor question their validity or applicability; although we do note that defendants alleged plaintiff's lack of workmanlike conduct in their counterclaim and admitted in their opening statement, after plaintiff's case in chief, that one of the issues in "this case is basically about doing a good job, ... a workmanlike performance standard...."

As we have said, we read plaintiff's petition differently than defendants do. Plaintiff pleaded it had entered into an " 'Escrow Receipt' agreement" with defendants and had "performed all of the conditions of [that] agreement on its part to be performed in that the sewage lagoon ... was 'filled with dirt and compressed by a tractor'...." If plaintiff's express promise to do work is to be read as carrying with it the implied promise to do the work in a workmanlike manner, we find no sensible reason to preclude us from reading into plaintiff's express allegation--that it "performed all of the conditions" of the agreement--as carrying with it the implied allegation that it performed all those "...