L.L. Lewis Const., L.L.C. v. Adrian

Decision Date07 September 2004
Docket NumberNo. WD 62400.,WD 62400.
Citation142 S.W.3d 255
PartiesL.L. LEWIS CONSTRUCTION, L.L.C., Appellant, v. Harry ADRIAN and Marge Adrian, Respondents.
CourtMissouri Court of Appeals

Appeal from the Circuit Court, Callaway County, Ellen S. Roper, J Brian K. Franka, Jefferson City, MO, for appellant.

Audrey Hanson McIntosh, Jefferson City, MO, for respondents.

Before NEWTON, P.J., ULRICH and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Harry and Marge Adrian entered into an oral contract with L.L. Lewis Construction Company, L.L.C., ("Lewis") for the remodeling of the Adrians' home. The original cost estimate prepared by Lewis for the remodeling was $83,829.78. The total amount billed by Lewis for the renovations to the Adrians' home, however, was $107,090.27. The Adrians paid Lewis $71,908.15 before they became dissatisfied with the construction and stopped paying. Lewis filed suit against the Adrians for breach of contact and sought damages in the amount of $35,182.12. The Adrians filed a counterclaim for breach of contract and "defective workmanship and lack of adequate engineering." Following a bench trial, the trial court entered judgment against Lewis on its breach of contract claim and entered judgment in favor of the Adrians in the amount of $17,550 on their counterclaim for breach of contract. Lewis appeals, claiming that the trial court committed numerous errors. Because Lewis' claims are not meritorious and the trial court properly found that Lewis materially breached the contract, the judgment of the trial court is affirmed.

Factual and Procedural Background

Sometime before September 1999, Larry Lewis, the managing member of L.L. Lewis Construction Company, met with the Adrians to discuss remodeling the Adrians' two-bedroom ranch-style home in Tebbetts. The Adrians provided Lewis with a picture of a house that they wanted their home to resemble after the remodeling. The Adrians wanted their remodeled home to be their "dream home." One reason the Adrians chose to remodel their existing home rather than build a new home was to save the hardwood floors, which were beautiful and unable to be replaced. The original remodeling plans called for changes to the main floor of the Adrians' existing home and the addition of a second story, which was to include three bedrooms, a hall bathroom, a master bathroom, and a laundry room.

After receiving the picture from the Adrians, Lewis had a floor plan prepared by Fab Building Center, which Lewis presented to the Adrians for their approval. The plan, however, was never approved or sealed by a licensed engineer or architect. After obtaining the Adrians' approval, Lewis prepared a budget, or cost estimate, for the remodeling job based on the original plan. The original cost estimate was for $83,829.78. The Adrians initially agreed to pay Lewis all costs incurred for the remodeling, including labor and materials, plus fifteen percent of these costs. The parties also agreed that Lewis would charge $31.25 per hour for carpenters and $17.50 per hour for laborers. The terms of the agreement, however, were never reduced to writing.

On or about September 13, 1999, Lewis began remodeling the Adrians' home. Following commencement of the construction, the Adrians began making changes to the original set of plans. Some changes, such as the addition of walk-in closets, were required because the original set of plans did not make effective use of space. Other changes included the addition of a dormer over the garage and the addition of a loft. Several deletions were also made to the original plans, including a back deck, kitchen, dining room, and a vault room. The biggest change was the conversion of the planned attic into a third-floor room and the addition of a third-floor dormer. When this change was contemplated Harry Adrian asked Larry Lewis whether the existing structural beam in the house was sufficient to carry the extra weight of the addition and Mr. Lewis assured Mr. Adrian that it was.

Lewis told the Adrians that it would have the renovation completed by Thanksgiving 1999. During November 1999, Lewis did not spend much time working on the project. Throughout the month of December 1999, the Adrians left numerous messages with Lewis, asking Lewis to come out and continue to work on the renovation and correct numerous defects. Sometime after Christmas, after Lewis failed to continue to work on the project and correct the defects, the Adrians told Lewis not to return.

Throughout the construction project, Lewis submitted invoices to the Adrians. The first invoice, for work performed from September 10, 1999, through September 23, 1999, was for $13,292.56. While the Adrians paid Lewis the full amount billed on the first invoice, Larry Lewis and Mr. Adrian thereafter agreed to reduce the percentage of profit on materials from fifteen percent to ten percent. The fifteen percent mark-up on labor was unchanged. The second invoice, for work performed through October 7, 1999, was for $23,705.26. The Adrians paid the second invoice in full. The third invoice, dated November 7, 1999, was for $34,910.33. The Adrians initially paid Lewis $20,000 for the amount billed on the third invoice. On February 1, 2000, the Adrians paid Lewis $14,910.33 for the remaining balance owed on invoice number three. Lewis sent the Adrians several additional invoices; the final invoice, dated June 7, 2000, indicated a final balance owed of $35,182.12. The Adrians, however, made no additional payments to Lewis. Thus, the total amount billed by Lewis was $107,090.27, while the total amount paid by the Adrians was $71,908.15, a difference of $35,182.12.

At the time Lewis stopped working on the renovation, around Thanksgiving, not one room was completed and the Adrians were unable to move into the second floor. In addition, after Lewis stopped working, structural defects in the construction began to be apparent. For example, the weight of the two-floor addition to the existing one-story structure caused a buckling of the floors on the first level. This was evidence that the weight of the addition was too great for the existing support beams and foundation. As a result, the Adrians' hardwood floors began to separate. About every couple of laths, an eighth- to quarter-inch separation was created between the wood laths. The added weight also caused a three-foot long crack in the brick above the garage door, cracks in the ceiling of the living room, and cracks in the tile in the master bathroom.

In addition to structural problems, Lewis' construction was defective in numerous other respects. For example, holes were left exposed in the exterior siding, which led to birds nesting in the wall. Lewis failed to properly vent the dryer, which resulted in condensation and mold building up in an exterior porch ceiling and caused the dryer to malfunction. Carpentry and plumbing in the downstairs bathroom were not properly installed. The fireplace fan motor was excessively noisy, and a ceiling fan was improperly hung. A Quaker window had been scratched and its frame dented by falling bricks. A heating and air conditioning duct above the ceiling in the master bedroom was not insulated and caused condensation, leaks, and moisture damage in the ceiling. Numerous defects also existed with the drywall. In particular, there were cracks in some walls and ceilings, nail pops or staple marks, saw marks on the third floor, and gaps between the drywall and the trim.

After the parties were unable to resolve their disagreements over the renovation project, Lewis filed a petition for breach of contract seeking damages in the amount of $35,182.12. The Adrians answered and filed a two-count counterclaim, alleging breach of contract and "defective workmanship and lack of adequate engineering." Prior to trial, the Adrians spent $15,310.93 to complete the renovation and correct a few defects. The work done by the Adrians to complete the renovation involved insulation; drywall in the dining and living room; cabinets; interior finish work, such as trim and hardware; installation of a staircase and third floor railing; painting and carpeting of all renovated areas; mirrors; and a sidewalk. Most of the defects were uncorrected at the time of trial.

The case was tried without a jury. On December 17, 2002, the trial court entered its judgment, with findings of fact and conclusions of law, holding that "[t]he construction, with the exception of the framing of the renovation, was not completed in a workmanlike manner," and it was "not possible to completely repair the problems caused by [Lewis'] construction. It also held that Lewis materially breached its contract with the Adrians. Accordingly, the trial court found in favor of the Adrians on Lewis' claim for breach of contract. The trial court also found in favor of the Adrians on the Adrians' counterclaim for breach of contract and awarded the Adrians $17,550. Finally, the trial court held that the Adrians failed to prove damages on their claim for defective workmanship and lack of adequate engineering. Lewis filed this timely appeal.

Standard of Review

In a court-tried case, this court will affirm the trial court's judgment unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court reviews the evidence, along with all reasonable inferences, in the light most favorable to the trial court's judgment and disregards all contrary evidence and inferences. Wildflower Cmty. Ass'n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App.2000). As the trier of fact, the trial court determines the credibility of witnesses and is free to believe or disbelieve all or part of the witnesses' testimony. Ken Cucchi Constr., Inc. v. O'Keefe, 973 S.W.2d 520, 524 (Mo.App.1998).

Points on Appeal

Lewis raises five points on appeal. First, Lewis asserts that ...

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