KDW Staffing, LLC v. Grove Constr., LLC

• Decision Date: 08 October 2019
• Docket Number: WD 82496
• Citation: KDW Staffing, LLC v. Grove Constr., LLC, 584 S.W.3d 833 (Mo. App. 2019)
• Parties: KDW STAFFING, LLC, Appellant, v. GROVE CONSTRUCTION, LLC, Respondent.
• Court: Missouri Court of Appeals

584 S.W.3d 833

KDW STAFFING, LLC, Appellant,

v.GROVE CONSTRUCTION, LLC, Respondent.

WD 82496

Missouri Court of Appeals, Western District.

OPINION FILED: October 8, 2019

David G. Bandre, Jefferson City, MO, for appellant.

David G. Brown, Columbia, MO, for respondent.

Before Division One: Cynthia L. Martin, Presiding Judge, Alok Ahuja, Judge and Anthony Rex Gabbert, Judge

Cynthia L. Martin, Judge

KDW Staffing, LLC ("KDW") appeals the trial court's entry of judgment ("Judgment") that found in favor of Grove Construction ("Grove") on a claim for action on account. KDW asserts the trial court erred in finding that KDW failed to meet its evidentiary burden that invoices and time cards were timely submitted to Grove for payment. KDW further asserts that the trial court erred in finding that Grove had a meritorious laches defense; that KDW materially breached terms of a contract between KDW and Grove; and that KDW failed to prove that it was entitled to interest payments on overdue accounts. Because KDW has failed to challenge all bases supporting the trial court's Judgment, we affirm.

Factual and Procedural Background¹

KDW is a staffing company in Columbia that contracts with construction companies to provide general laborers and other skilled workers for commercial construction projects. On May 27, 2014, KDW entered into a one-year General Staffing Agreement ("Agreement") to provide general laborers ("Assigned Employees") to Grove on an hourly basis. The Assigned Employees performed work on a commercial construction project that involved improvements to an apartment complex. Grove's underlying contract with the owners of the apartment complex was a "time and materials" contract. The time and materials contract required Grove to provide on a monthly basis to the apartment owner the actual cost of labor and materials as the costs were incurred, including the cost of Assigned Employees.

The Agreement between KDW and Grove required KDW to send invoices "via the United States Postal Service or a nationally recognized courier" to Grove for services provided by the Assigned Employees on a weekly basis. The Agreement also required that KDW invoices "be supported by the pertinent time sheets or other agreed system for documenting time worked by Assigned Employees."

KDW billed Grove weekly invoices for Assigned Employees labor costs through September 2014. Erin Lent ("Lent") was an accountant with KDW who oversaw invoicing for the Grove account. However, on September 19, 2014, Lent left KDW's employment. Beginning September 19, 2014, KDW repeatedly failed to provide weekly invoices and supporting time sheets to Grove. Grove paid all invoices received through December 17, 2014 that were supported by time sheets, and even some invoices that were not supported by time sheets. Additional invoices were provided to Grove after December 17, 2014, but were not paid by Grove because upon Grove's request, KDW failed to support the invoices with time cards. The Agreement expired on May 27, 2015. By July 15, 2015, Grove had completed the construction project at the apartment complex and closed out all accounts on the underlying time and materials contract, having provided the apartment complex owners with a final statement. On July 15, 2015, KDW provided Grove time sheets supporting $50,282.14 for allegedly unpaid services provided by Assigned Employees.

In April 2016, KDW filed an action on account to recover payment on invoices totaling $65,818.58. A trial to the court was held. KDW's sole witness testified that Grove paid in excess of $80,000 on invoiced services. Evidence adduced by Grove corroborated KDW's sole witness's claim, demonstrating that $88,808.75 had been paid to KDW by Grove. KDW failed to adduce evidence demonstrating the entire value of services provided by KDW to Grove.

The trial court awarded Judgment in favor of Grove. Because KDW failed to demonstrate the total value of services provided on account, the Judgment found that the total amount invoiced on account was $65,818.58. The Judgment found that Grove had met its burden to prove the affirmative defense of payment because "the total of the proven payments on the account exceeds the amount that KDW undertook to prove was owed on the account." The Judgment also found that Grove met its burden to prove the affirmative defense of laches on any amount in excess of the $50,282.14, which was invoiced with supporting time sheets on July 15, 2015. The Judgment found that KDW had materially breached the terms of the Agreement by not sending weekly invoices supported by time sheets "via the United States Postal Service or a nationally recognized courier" as required by the Agreement. The Judgment found that KDW failed to prove the essential elements to support an action on account because KDW failed to prove the reasonableness and correctness of each invoice. Finally, the Judgment rejected KDW's claims for interest and attorney's fees.

KDW timely appeals.²

Standard of Review

"When reviewing a trial court's judgment in a court-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Agriservices of Brunswick, LLC v. Jacoby , 548 S.W.3d 430, 434-35 (Mo. App. W.D. 2018) (citing Holm v. Wells Fargo Home Mortgage , 514 S.W.3d 590, 596 (Mo. banc 2017) ). Under this standard, we "view the evidence in a light most favorable to the judgment and disregard all contrary evidence and permissible inferences." Med. Plaza One, LLC v. Davis , 552 S.W.3d 143, 153 (Mo. App. W.D. 2018).

Analysis

KDW raises five points on appeal. KDW's first point asserts that the trial court erred by finding that KDW did not timely submit invoices supported by time cards because the finding lacked "substantial evidence." KDW’s second point argues that the trial court erred by finding that Grove established the affirmative defense of laches because the finding was not supported by substantial evidence. KDW's third point asserts that the trial court erred in finding that KDW breached the Agreement when KDW did not send invoices by United States Post or another recognized courier. KDW's fourth point claims the trial court erred in finding that KDW breached the Agreement by not supporting invoices with time cards. KDW's fifth point asserts the trial court erred in rejecting KDW's request for interest on the alleged amount owed by Grove. Before considering the merit of KDW's points on appeal, we must consider whether KDW's appeal is fatally defective because it fails to challenge all of the multiple, sufficient bases supporting the trial court's Judgment.

Rule 84.04(d)(1)³ requires points relied on to "(A) identify the trial court ruling or action that the appellant challenges; (B) State concisely the legal reasons for the appellant's claim of reversible error; and (C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Our courts "adhere[ ] to the well-entrenched doctrine that the questions for decision on appeal are those stated in the points relied on , and a question not there presented will be considered abandoned." Gaar v. Gaar's Inc. , 994 S.W.2d 612, 616 (Mo. App. S.D. 1999) (Emphasis added); see also Spencer v. Lombardi , 500 S.W.3d 885, 889 (Mo. App. W.D. 2016) ("[A]n appellant's argument is limited to only those errors asserted in the points relied on.") (internal quotations omitted). None of KDW's points on appeal challenge the trial court findings that Grove established the affirmative defense of payment, or that KDW failed to meet its burden of proof as to the correctness or reasonableness of its statement of account.⁴ KDW's failure to challenge these bases is fatal to its appeal because these independent bases for the Judgment are sufficient to affirm the trial court’s denial of KDW's action on account.

"An action on account is based in contract." Building Erection Services Co. v. Plastic Sales & Mfg. Co., Inc. , 163 S.W.3d 472, 477 n. 1 (Mo. App. W.D. 2005). "An action on account ‘is appropriate where the parties have conducted a series of transactions for which a balance remains to be paid.’ " Berlin v. Pickett , 221 S.W.3d 406, 410 (citing 1 AM.JUR. 2d Accounts & Accounting section 8 (2005) ) (Mo. App. W.D. 2006). "The plaintiff has the burden of making a submissible case by establishing proof of an offer, an acceptance, consideration, correctness of the account, and the reasonableness of the charges." Id. "The plaintiff must prove that the defendant requested him to furnish services, that he accepted defendant's offer by...