Larry v. King

• Court: Missouri Court of Appeals
• Writing for the Court: DON E. BURRELL, Judge.
• Citation: Larry v. King, 327 S.W.3d 543 (Mo. App. 2010)
• Decision Date: 18 November 2010
• Docket Number: No. SD 30183.,SD 30183.
• Parties: Larry and Paula CASON, and Donnie and Kelly Hatton, Plaintiffs–Respondents,v.James KING, Defendant–Appellant.

327 S.W.3d 543

Larry and Paula CASON, and Donnie and Kelly Hatton, Plaintiffs–Respondents,

v.James KING, Defendant–Appellant.

No. SD 30183.

Missouri Court of Appeals, Southern District, Division One.

Nov. 18, 2010.

David Simpson, St. James, MO, for Appellant.Shelley L. Woodward, Cuba, MO, for Respondents.DON E. BURRELL, Judge.

James King (“Defendant”) timely appeals a civil judgment for monetary damages entered against him in favor of plaintiffs Larry and Paula Cason (“the Casons”) and Donnie and Kelly Hatton (“the Hattons”) (collectively, “Plaintiffs”) after a bench trial. The suit arose out of work Defendant performed on two septic systems. The judgment awarded the Casons $3,500, representing the cost to repair their defective septic system, plus $5,000 for the loss of the full use of their property.¹ The judgment awarded the Hattons $4,900 for the cost to repair their septic system.

Defendant presents one point on appeal, asserting the trial court erred in awarding damages “because the evidence was insufficient to prove damages in that neither [set of] Plaintiff[s] produced any evidence regarding diminution in land value and the court therefore had no basis for awarding repair costs [.]” In the same point, Defendant also asserts that Mr. Cason failed to “produce any evidence supporting the $5,000 amount that the court awarded him for loss of use of his lake, and [ ] that the proper measure for damages resulting from the loss of use of his lake is either the diminution in value or repair costs.”

Finding merit in Defendant's claim that the evidence was insufficient to support the amount of the trial court's loss of use award to the Casons, we reverse that portion of its judgment, affirm the balance, and remand the matter for a new trial on the limited issue of damages suffered by the Casons as a result of their lake being contaminated by the defective septic system installed by Defendant.

Facts

In a court-tried case, “[a]ll evidence and permissible inferences therefrom are considered in the light most favorable to the trial court's decision, and all contrary evidence and inferences are disregarded.” Pruitt v. Pruitt, 94 S.W.3d 429, 431 (Mo.App. E.D.2003). To his credit, Defendant agrees that “[t]he evidence in this case viewed in a light most favorable to [Plaintiffs] supported the trial court's finding of contract and breach, but there was insufficient evidence of damages.” We summarize the facts of this case with that standard and Defendant's concession in mind.

The Casons lived on a 100–acre cattle farm in Owensville. The Hattons, who were the Casons' daughter and son-in-law, owned a house on neighboring land. In July 2000, Mr. Cason was adding a seven-acre lake to his property and hired Defendant to add a new ground field to his existing septic system. Mr. Cason told Defendant “that [he] was installing the septic field because [he] was building a new lake and [he] didn't want the raw sewage draining into the lake.” Defendant installed approximately 220 feet of pipe to create the new ground field, and Mr. Cason paid Defendant $1,500 for this work. “A few weeks after the installation[,] after [Defendant] had left, [the system] started leaking sewage to the surface and smelling.”

Mr. Cason contacted Defendant, who attempted repairs. Over the next several years, problems with sewage seeping to the surface of the ground continued. Defendant's additional attempts to fix the problems were unsuccessful, and the instant lawsuit was filed in May 2005. In June 2006, Mr. Cason had the septic system replaced by a new contractor for $3,500. The replacement system was rerouted to a new field, additional pipe was used, and the system was “slightly larger” than the prior system. After the new system was installed, no more leaks occurred.

Mr. Cason planned on using his new lake for recreation and to water his cattle. The lake was not finished until after the septic system started leaking. Sewage seeped into the lake from a cesspool that resulted from the leaking system. Additional sewage ran into the lake whenever Defendant would open the system in furtherance of his attempts to repair it. The odor from the leaking sewage on the Casons' property was so bad during these times that the family and their guests could not remain outside. The water in the lake also began to emit a foul odor, and Mr. Cason could not use it to water his cattle. Children did swim in the lake, although they had to bathe afterwards, and the Casons generally did not keep “very many” fish caught in the lake.

The lake remained malodorous after the replacement system was installed. The lake was not drained after the sewage leaks had occurred, and Mr. Cason did not attempt to purify the water or otherwise clean the lake. Mr. Cason testified that “[t]he lake cost well over $10,000 to build[.]” Mr. Cason requested “maybe $5,000” as damages for the Casons' loss of use of the lake. No evidence, other than the original cost to build the lake, was offered as support for the amount requested.

Defendant installed a new septic system for the Hattons' home shortly before he installed the ground field for the Casons. Mr. Hatton paid Defendant $3,000 for the septic system. Approximately four-to-six months after the system was installed, Mr. Hatton began to notice sewage leaching up in his yard. Mr. Hatton called Defendant about it. Defendant came out to look at it, but did not make any repairs. Defendant suggested that perhaps Mr. Hatton had run over the system and broken a pipe.

Mr. Hatton then had another contractor inspect the system. That contractor did not find a broken pipe. He repaired the Hattons' septic system by installing both a pump station and a new ground field using additional pipe. The cost of the replacement system was $4,900.00.

Standard of Review

The judgment of the trial court must be affirmed “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Substantial evidence is competent evidence which, if believed, would have probative force upon the issues.” State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee's Summit, 957 S.W.2d 416, 419 (Mo.App. W.D.1997) (citing Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 124 (Mo.App. W.D.1982)). In reviewing the evidence presented at trial, we “give due regard to the opportunity of the trial court to have judged the credibility of witnesses[.]” Rule 84.13(d)(2).²

Analysis

Defendant claims the trial court misapplied the law and that its judgment is not supported by substantial evidence. At the outset, we note that Defendant's point relied on improperly asserts more than one claim of error. It states:

The trial court erred in awarding the amount of damages to both [the Casons and the Hattons] because the evidence was insufficient to prove damages in that neither [the Casons nor the Hattons] produced any evidence regarding diminution in land value and the court therefore had no basis for awarding repair costs, in that [Mr. Cason] did not produce any evidence supporting the $5,000 amount that the court awarded him for loss of use of his lake, and that the proper measure for damages resulting from the loss of use of his lake is either the diminution in value or repair costs.

A point relied on must identify a single trial court ruling that is challenged, state concisely the applicable legal principle(s) supporting that challenge, then summarize how the legal reason(s) stated apply to the facts of the case. Rule 84.04(d). Defendant's single point attempts to challenge the trial court's ruling on cost of repair damages as to both the Casons and the Hattons as well as its loss of use award to the Casons. A point that groups together multiple contentions of error does not satisfy Rule 84.04. Martin v. Reed, 147 S.W.3d 860, 863 (Mo.App. S.D.2004).

From the argument section of Defendant's brief, we discern that his primary complaints are: 1) evidence of diminution in value must always be produced before evidence of cost of repair can be received and Plaintiffs presented no such evidence; and 2) insufficient evidence was presented as to the damages suffered by the Casons due to the loss of use of their lake. Because there is a preference that appeals be resolved on the merits whenever possible, and the deficiency of Defendant's point does not substantially impede appellate review, we will address his claims of error ex gratia. See Comp & Soft, Inc. v. AT & T Corp., 252 S.W.3d 189, 194 (Mo.App. E.D.2008) (noting the policy preference and granting ex gratia review when the “gist” of the appellant's arguments could be discerned).

Actual Damages Based on Cost of Repair

Defendant argues the trial court misapplied the law by awarding cost of repair damages without first determining that the cost of repair was less than any diminution to the value of the properties caused by his breach of contract. The trial court's judgment stated:

The court, having taken the matter under advisement, now finds the issues contained in Counts I [the Casons' breach of contract claim] and V [the Hattons' breach of contract claim] in favor of the Plaintiffs and against the Defendant. The [c]ourt finds that there are due to Plaintiffs from the Defendant the following amounts:

To [the Casons]:

Cost of Repair in the amount of Three Thousand Five Hundred Dollars ($3500.00) and for Loss of Use of the property and pond the amount of Five Thousand Dollars ($5000.00) for a total amount of Eight Thousand Five Hundred Dollars ($8500.00).

To [the Hattons]:

Cost of Repair in the amount of Four Thousand Nine Hundred Dollars ($4900.00).

“A plaintiff claiming a breach of contract has available and need not choose between three types of damages—actual, consequential, and benefit-of-the-bargain—as such damages are not...