Ken Cucchi Const., Inc. v. O'Keefe

• Decision Date: 14 July 1998
• Docket Number: No. 72465,72465
• Citation: 973 S.W.2d 520
• Parties: KEN CUCCHI CONSTRUCTION, INC., d/b/a Cucchi Construction, Inc., Appellant, v. Jerry R. O'KEEFE and Bernice M. O'Keefe, Respondents.
• Court: Missouri Court of Appeals

Page 520

973 S.W.2d 520

KEN CUCCHI CONSTRUCTION, INC., d/b/a Cucchi Construction Inc., Appellant, v. Jerry R. O'KEEFE and Bernice M. O'Keefe, Respondents.

No. 72465.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 14, 1998.

Bernard A. Reinert, John W. Rourke, St. Louis, for appellant.

John L. Rooney, St. Louis, for respondents.

AHRENS, Presiding Judge.

I. Facts

Plaintiff, Cucchi Construction, filed a five-count petition against defendants, Jerry and Bernice O'Keefe, arising out of the defendants' refusal to pay plaintiff the balance on a contract for the construction of the defendants' house. Defendants filed a counter-claim, alleging that plaintiff breached its obligations under the contract. The trial court entered judgment in favor of defendants on both plaintiff's claim and their counter-claim and ordered plaintiff to pay defendants $5,155.19. Plaintiff appeals from the trial court's judgment. We affirm in part, and reverse in part and remand.

Viewing the record in the light most favorable to the trial court's judgment, the following evidence was adduced at trial. A fire destroyed defendants' home in September 1993. In late November 1993 plaintiff agreed to rebuild defendants' home in exchange for $105,000. The contract specified that the defendants would pay plaintiff $35,000 at the inception of construction, $35,000 after plaintiff put on the roof, $30,000 after plaintiff completed construction and $5,000 after plaintiff completed a "walk-thru".

Defendants timely made the first two installment payments of $35,000. Plaintiff then sent defendants an invoice in September 1994 after it had completed construction of the residence. In this invoice, plaintiff credited defendants' account in the amount of $10,472 for their purchase of materials from subcontractors that plaintiff was responsible for. Also, plaintiff charged defendants $3,911.23 for additional work that plaintiff alleged the defendants had ordered. Thus, plaintiff's invoice showed that defendants owed plaintiff a balance of $28,439.23 on the contract.

The defendants refused to pay any additional amount above the $70,000 they had already paid, asserting that the quality of plaintiff's work was unacceptable and that plaintiff had not conducted the walk-thru. Plaintiff, in response to defendants' refusal to pay the balance due on the contract, filed a five-count petition against defendants in Jefferson County Circuit Court. Plaintiff contended in Count I that the defendants breached the contract by failing to pay the remaining balance on the contract. In Counts II and III plaintiff asserted that it was entitled to the balance on the contract under either a promissory estoppel or quantum meruit theory. Plaintiff asserted in Counts IV and V that it was entitled to either a mechanic's lien or an equitable lien on defendants' property to secure payment of the debt. Plaintiff also requested that the court order defendants to pay its attorney's fees, a service charge and interest.

Defendants filed a counter-claim against plaintiff, asserting that plaintiff breached the contract by failing to perform its work in a workmanlike manner and that plaintiff failed to provide for some of the materials required in the contract. In a bench-tried case, the trial court entered judgment against plaintiff on all five of its counts and in favor of defendants on their counter-claim.

In calculating defendants' damages, the trial court began with the assumption that plaintiff was entitled to the $105,000 contract price. The trial court then deducted the $70,000 the defendants had already remitted to plaintiff. The trial court also subtracted a $6,200 payment the defendants' insurance company paid to plaintiff for debris removal prior to the beginning of construction. The trial court further deducted $5,000 off the contract price because plaintiff had not conducted the walk-thru as required by the contract. These subtractions left a balance of $23,800 on the contract price.

The trial court then credited defendants for the cost of replacing plaintiff's defective workmanship and the amount of money defendants spent on purchasing materials that plaintiff was required to purchase under the contract. The trial court found defendants' cost to repair or replace plaintiff's defective workmanship was $15,450. The trial court also determined that the defendants purchased materials in the amount of $13,505.19 that plaintiff was required to provide. Accordingly, the trial court calculated defendants' damages to be $28,955.19. Subtracting these damages from the balance remaining on the contract price, the trial court ruled that the defendants were entitled to $5,155.19. The trial court denied plaintiff's motion for a new trial. This appeal follows.

II. Analysis

In a court-tried case, we will affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo banc 1976). Further, in determining whether there is sufficient evidence to support the trial court's judgment, we will review the evidence in the light most favorable to the judgment. Mason v. Mason, 873 S.W.2d 631, 633-34 (Mo.App.1994). Also, the trial court, as the trier of fact, determines the credibility of witnesses and may believe or disbelieve all or a part of any witnesses' testimony. Rule 73.01(c)(2); Gee v. Payne, 939 S.W.2d 383, 388 (Mo.App.1997).

A. Plaintiff's Substantial Performance

Plaintiff asserts sixteen points of error on appeal. However, many of plaintiff's points are derivative of one another and can be reduced to four assertions of error. Plaintiff first asserts that the trial court erred in finding that it breached the contract with defendants. Plaintiff argues that although there may have been slight defects in its work, it did substantially comply with its contractual obligations. Even if a contractor does not strictly comply with its obligations under the contract, it may recover on the contract if it substantially complied with its requirements. Daugherty v. Bruce Realty & Development, Inc., 892 S.W.2d 332, 335 (Mo.App.1995). When a contractor has substantially complied with its obligations under the contract, it is entitled to recover the contract price minus the sums necessary to correct any defects. Sides Construction Co. v. Arcadia Valley R-II School Dist., 565 S.W.2d 761, 772 (Mo.App.1978).

Here, the trial court found that plaintiff did not substantially perform its obligations under the contract and therefore could not recover on its breach of contract claim. However, the trial court then proceeded to calculate defendants' damages from the perspective that plaintiff was entitled to the $105,000 contract price. Thus, the manner in which the trial court calculated defendants' damages was identical to the manner it would have calculated these damages if it had found that plaintiff substantially complied with its contractual obligations. ¹ Therefore, any error the trial court may have committed in finding that plaintiff did not substantially comply with its contractual obligations did not prejudice plaintiff and does not warrant reversal. ² Rule 84.13(b).

B. The Trial Court's Calculation of Damages

Plaintiff next argues that the trial court incorrectly calculated both the amount defendants owed it under the contract and the credits defendants were entitled to offset against that amount. As we illustrated above, the trial court calculated that defendants owed plaintiff $23,800 under the contract and that defendants were damaged in the amount of $28,955.19 by plaintiff's failures to properly execute its obligations under the contract. Plaintiff contends the trial court erred in making these calculations in the following respects.

1. Value of Extra Work done by Plaintiff

Plaintiff also contends that the trial court should have increased the amount that defendants owed it under the contract by $2,411.23 for the value of the extra services and materials it provided defendants. The trial court held that plaintiff was not entitled to the value of these services and material because the work orders were not in writing as required by the contract. ³

When a contract requires a contractor to obtain a written work order before beginning any additional work, the contractor may not recover for the extra work unless it obtains either the written order or a waiver by the landowner. Robinson v. Powers, 777 S.W.2d 675, 680 (Mo.App.1989). A contractor may show that the landowner waived the requirement of a written work order by presenting evidence that the parties orally agreed upon the extras. Winn-Senter Construction Co. v. Katie Franks, Inc., 816 S.W.2d 943, 945 (Mo.App.1991).

Here, the contract between defendants and plaintiff required plaintiff to obtain a written work order and defendants' signatures before doing the extra work. Plaintiff failed to obtain such a work order. Plaintiff's vice-president, Joe Cucchi, did testify that defendants consented to the additional work and agreed to pay for it. However, Mrs. O'Keefe testified that neither she nor her husband consented to the additional work that was not in a written work order. Viewing this record in the light most favorable to the trial court's judgment, there is substantial evidence to support the trial court's finding that the plaintiff was not entitled to the $2,411.23 for the additional work.

2. The $6,200 Payment for Debris Removal

Plaintiff next argues that the trial court erred in crediting defendants for the $6,200 payment defendants' insurance company made to plaintiff for debris removal. Plaintiff contends that substantial evidence does not support the trial court's finding that the $6,200 payment for debris removal was part of the $105,000 contract price. We agree.

Mrs. O'Keefe did testify that on direct examination that plaintiff agreed that...