Kopp v. Franks

• Citation: 792 S.W.2d 413
• Decision Date: 05 July 1990
• Docket Number: Nos. 16406,16420,s. 16406
• Parties: Daniel G. KOPP and Lois M. Shufeldt, Plaintiffs-Appellants, v. Richard FRANKS and Faith Franks, Defendants-Respondents. Daniel G. KOPP and Lois M. Shufeldt, Plaintiffs-Respondents, v. Richard FRANKS and Faith Franks, Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 413

792 S.W.2d 413

Daniel G. KOPP and Lois M. Shufeldt, Plaintiffs-Appellants, v. Richard FRANKS and Faith Franks, Defendants-Respondents.

Daniel G. KOPP and Lois M. Shufeldt, Plaintiffs-Respondents, v. Richard FRANKS and Faith Franks, Defendants-Appellants.

Nos. 16406, 16420.

Missouri Court of Appeals,

Southern District,

Division Two.

July 5, 1990.

David F. Sullivan, Schmidt, Kirby & Sullivan, Springfield, for plaintiffs-appellants and plaintiffs-respondents.

Craig F. Lowther, Greggory D. Groves, Lowther, Johnson, Lowther, Cully & Housley, Springfield, for defendants-respondents and defendants-appellants.

SHRUM, Judge.

Plaintiffs Daniel G. Kopp and Lois M. Shufeldt, husband and wife, brought suit against defendants Richard Franks and Faith Franks seeking specific performance of a contract and damages for breach of the same contract. The contract provided that defendants were to build a home for plaintiffs for $210,000.00 on a lot selected by plaintiffs but purchased by defendants. Plaintiffs filed a lis pendens notice when they filed their lawsuit. Defendants counterclaimed seeking actual and punitive damages from plaintiffs for abuse of process in the filing of lis pendens. The trial court made detailed findings of fact and conclusions of law followed by judgment and order denying plaintiffs' claim for specific performance and attorney's fees. The trial court's judgment denied defendants' damage claim for abuse of process and defendants' claim for attorney's fees. Judgment for $13,176.78 was entered for plaintiffs, being a sum equal to the $13,000.00 down payment plus an additional $176.78 paid by plaintiffs for materials in the house.

Plaintiffs appeal from the judgment denying their claim for specific performance. Defendants cross-appealed from the denial of their abuse of process claim; denial of their claim for attorney's fees; and the judgment for $13,176.68. This court affirms.

Plaintiffs had long planned to build a home. After looking at homes built by defendants, the plaintiffs requested a set All increases in contract sum resulting from changes will be as agreed to by the parties hereto or will be the contractor's actual cost, to include a reasonable sum for Contractor time, additional interest and insurance if the change results in an increase in contract time, plus TWENTY PERCENT (20%). (Capitals in the original).

                of drawings from the defendants of one of defendants' "model homes."   Plaintiff Lois Shufeldt made some changes in the floor plan and thereafter, on May 6, 1987, plaintiffs and defendants entered into a contract whereby defendants were to construct a residence as depicted on the plans and drawings for $210,000.00.  Plaintiffs had chosen the lot before signing the building contract.  Defendants paid $32,500.00 for the selected lot and took title in their name.  Plaintiffs made a $3,000.00 down payment when the contract was signed, and pursuant to a provision of the contact, an additional $10,000.00 was paid by plaintiffs to defendants on May 22, 1987.  The contract did not provide for the payment of any additional sums during the construction stage.  Paragraph 8 of the contract read as follows
                

Construction started May 7, 1987, with the digging of the basement started on May 8. After construction started, plaintiffs requested changes in the work and plans. On June 30, 1987, during a walk-through, certain change orders were submitted to the defendants. Change order 3 added brick to the north wall; change order 4 added humidifiers to both furnaces; and change order 6 was an upgrading of the furnaces. When the change orders were presented to plaintiffs, they took issue with the additional 20 percent contractors' fee provided in paragraph 8 of the contract. After some discussion, the defendants agreed not to charge the 20 percent additional contractors' fee.

In July 1987, further disputes arose between the parties. Plaintiff Lois Shufeldt requested that "rosettes" (decorative wooden blocks) be installed on the corners of door frames for decorations, claiming that they had been promised, although not required by the contract. After a short dispute between plaintiff Lois Shufeldt and defendant Richard Franks, the defendants agreed to add them at no charge. The trial court observed that these were minor disputes in terms of cost but added to the friction between the parties.

Other sources of trouble arose in July from the fact that plaintiff Lois Shufeldt requested that a dormer above the garage be constructed with the same siding used on the rest of the house, although the specifications had called for redwood and the defendants had used redwood. Acceding to plaintiffs' request, defendants removed the redwood and replaced it with the cheaper siding that was on the rest of the house. The cost to the defendants in removing the redwood siding was approximately $300.00, which they did not charge to the plaintiffs.

Shortly after the rosettes issue, defendant Faith Franks asked plaintiff Lois Shufeldt to choose colors for the grout and formica, stain for the woodwork and cabinets, and hardware for cupboards and vanities. A walk-through for this purpose was suggested by defendant Faith Franks, but the walk-through did not occur. This became a source of controversy later when completion date issues arose.

The next dispute occurred over closet shelving and rods in the master bedroom. Plaintiff Lois Shufeldt claimed they were not done according to her specifications. Defendant Richard Franks reported that a change order and additional charge would be necessary to meet her demands, but later the defendant acknowledged that the contract did provide for what plaintiffs demanded and agreed to finish the closet to the plaintiffs' specifications.

The trial court noted in its findings of fact that it was apparent from the demeanor of plaintiffs and defendants during their testimony, that by the time of the closet dispute, the relationship had deteriorated substantially. Additional changes, which plaintiffs requested and defendants furnished without additional cost, included the substitution of a porcelain sink, as specified in the contract, with a more expensive In August 1987, defendants referred plaintiffs to a carpet store to look for carpet material. While at the store, plaintiffs asked if the billing for the carpeting could be sent directly to them thereby saving plaintiffs the extra 20 percent on the overrun. If this could be accomplished, the material bill would not exceed the budget allowance or, at least, the defendants would not know the material exceeded the allowance. The carpet store owner, Terry Addington, not wishing to compromise his relationship with the defendants, refused to accept that arrangement without the defendants' permission. Defendants learned of the plaintiffs' attempt to obtain direct billing on the carpeting.

stainless steel sink. No charge was made by defendants to plaintiffs for that change. PVC pipe was placed under the driveway for a sprinkler system, which was an extra cost, and end panels were placed in the kitchen at an additional cost to defendants.

Another dispute, which added fuel to the fire, was plaintiffs' request that defendants build a brick mailbox. When it was found that subdivision restrictions would not allow such construction, plaintiffs requested a credit for the amount that the defendants saved by not having to build the mailbox, which defendants had already agreed to build without charge. The mailbox was not in the contract specifications and when plaintiffs demanded the credit, defendants became angry about the request. A similar request involved marble stool surrounds. Defendants agreed to build the marble stool surrounds at no extra cost even though not in the plans. When it was determined that the marble stool surrounds were not needed, plaintiffs made a claim on the defendants for a credit.

On August 17, 1987, the parties held another walk-through inspection. The trial court noted that the walk-through inspection proceeded without serious dispute, but it was obvious to the trial court that plaintiffs were dissatisfied with the speed with which the house was progressing and, further, plaintiffs had concerns about other aspects of the contract which they did not express to defendants. One such concern related to the fact that the contract called for textured ceilings but the plaintiffs wanted painted ceilings. Defendant Richard Franks had apparently told plaintiffs that painted ceilings would not cost more, but later defendant Faith Franks told them that painted ceilings would be 32 cents per square foot extra, plus the contractors' fee. There was evidence that 32 cents per square foot was a fair charge in the Springfield area. However, plaintiffs perceived this as an attempt to charge them unfairly, and it became a serious issue to the plaintiffs.

Status of the relationship between the parties worsened substantially during a telephone conversation on August 25, during which plaintiff Daniel Kopp accused defendant Richard Franks of trying to "screw" the plaintiffs and of trying to "cheat" them. During that telephone conversation, Daniel Kopp told defendant Richard Franks that he would "nitpick" the contract from then on and hung up on Richard. Additional conversations, on that date, were between plaintiff Lois Shufeldt and defendant Richard Franks.

On August 31, plaintiffs sent defendants a letter in which they complained about painting of the ceilings, water leaks in the master bedroom, cabinets in the basement, cost estimates of the finished project and the completion date. Plaintiffs complained in the letter that their loan approval was good only through October 15, 1987, and stated that, "We are also going to want to have the house inspected by a professional inspector as a precautionary measure and to insure our complete satisfaction." (Emphasis added.) Defendants' reaction to the letter was that they had not...