Mathis v. Glover

Decision Date13 August 1986
Docket NumberNo. 14207,14207
Citation714 S.W.2d 222
PartiesHarry MATHIS, d/b/a Doors of Columbia, Plaintiff-Appellant, v. Clifford B. GLOVER, et ux., et al., Defendants-Respondents.
CourtMissouri Court of Appeals

Tracy Mathis, John C. Hannegan, Hannegan, Stokes, Moerschel & Weber, P.C., St. Charles, for plaintiff-appellant.

Erik A. Bergmanis, Charles E. McElyea, Phillips, McElyea, Walker & Carpenter Corp., Camdenton, for defendants-respondents.

TITUS, Presiding Judge.

Plaintiff Harry Mathis, d/b/a Doors of Columbia, and defendant Clifford B. Glover at various times agreed that plaintiff would custom manufacture, deliver and install in the new Lake of the Ozarks home of defendant and his wife, a mahogany exterior door and sidelight glass, together with interior display cabinets, doors, stair railing, trim, casings and jambs. Defendant gave plaintiff a $1,700.00 deposit on the total agreement by a check dated "February 8, 1982." After the doors, etc., had been manufactured and assembled in plaintiff's Columbia plant, they were on March 15, 1983, transported to and installed in defendant's home by plaintiff's son and a fellow employee. When this work, together with suggested minor adjustments, was completed, defendant gave plaintiff's agents a $7,013.79 check supposedly representing the balance due plaintiff for labor and materials furnished and installed, together with taxes owed. After a closer daylight inspection of the exterior mahogany unit and display cabinets, defendant became dissatisfied with the quality of workmanship and material used in their production and installation. Defendant then stopped payment on the $7,013.79 balance check. Thereafter, and without being able to agree with plaintiff on the true balance owed, defendant sent plaintiff a $1,768.46 check as "Balance in full for Interior doors and white pine trim." This check, dated April 8, 1983, was refused and the instant litigation ensued. 1

Plaintiff sued defendant Clifford B. Glover et uxor and others for $7,517.33 2 and prayed the judgment thereon be ordered to constitute a lien on the subject real estate. Albeit the court, in this court-tried action, found no lien was available to plaintiff because of his failure to give the required "NOTICE TO OWNER" pursuant to § 429.012 3, it held a cause of action existed for the averred underlying debt. However, the court nisi found and ruled plaintiff was not entitled to recover for the exterior mahogany unit etc. but was only entitled to recover for the "interior doors, white pine trim and related work" and assessed plaintiff's damages at $4,456.24 less the $1,700.00 down payment for a net of $2,756.24. This amount was adjudged recoverable from defendant Clifford B. Glover only but not his wife because she "was not a party to the contract with plaintiff." The court additionally ruled that as plaintiff's work relating to the exterior mahogany unit etc. was not properly performed, defendants Clifford B. Glover et uxor were entitled to recover of plaintiff the sum of $1,280.00 on their counterclaim. Only plaintiff appealed. 4

In prelude to our consideration of the points relied on and our recitation of the facts pertinent thereto, which plaintiff sometimes ignores, we remind all that in court-tried cases it is presumed the trial court considered only the evidence properly received. Consequently, the reception of improper evidence, if any, by the trial court as may be shown by plaintiff can hardly ever be grounds for reversal when we have, as here, concluded the competent evidence in the record is sufficient to support most of the trial court's findings. In re Richard, 655 S.W.2d 110, 113 (Mo.App.1983). Moreover, in court-tried cases we, upon review, are obligated to sustain the appealed judgment unless we conclude it is against the weight of the evidence or erroneously applies or declares the law. Ere we may do so, we must possess a solid belief the judgment is wrong for the resolution by the trial court of conflicting evidence must be afforded due deference by us for that tribunal has leave to believe or disbelieve all, part or none of the testimony of any witness though it stands uncontradicted. Wood v. Wood, 709 S.W.2d 143, 147 (Mo.App.1986). Where, as in this and most all cases, conflicts in testimony exist, we assume the trial court believed only the testimony and evidence consistent with its judgment. McComas v. Umlauf, 641 S.W.2d 809, 812 (Mo.App.1982); State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400, 402 (Mo.App.1982); McClelland v. Williamson, 627 S.W.2d 94, 96[1, 2] (Mo.App.1982).

None of the parties on appeal shy from prolixity in penning the various segments of their briefs. Also, no party has undertaken to summarize the obvious reasons for the judgment. In substance the trial court patently concluded the exterior mahogany unit and display cabinets consisted of such substandard materials and workmanship as to be worthless. Consequently, the court allowed plaintiff no credit for such but did allow him $4,456.24 for the other materials and labor which it found acceptable. Thus if defendants were not to be charged for the substandard items and labor, they would not be entitled to total charged damages therefor. On the other hand, the court obviously concluded that defendants were entitled to $1,280.00 in damages representing, as the evidence attested, the cost of $640.00 in removing the defective millwork supplied by plaintiff and the cost of $640.00 in installing newly fabricated replacement millwork. Hence, the award to plaintiff on his petition of $4,456.24 in damages (less the $1,700.00 previously paid), and the award to defendants of $1,280.00 on their counterclaim.

In effect, plaintiff's first point relied on 5 is that the trial court erred in denying him recovery for the exterior mahogany unit and display cabinets because the therein claimed defects were not due to plaintiff's workmanship or installation in that (a) the defect to the door resulted from defendant's failure to preserve and protect it by preparing it and applying a finish coat, (b) the defect claimed to the shape of the exterior mahogany unit was due to defendant's template, 6 (c) the defects claimed to the display cabinets were due to the imperfection of defendants' walls and (d) the defects claimed regarding "the split trim and casing, the miter joints, the weather stripping, the stops for the glass inserts and the saw marks are de minimus [sic] and can be repaired for less than $300.00 in total."

In re plaintiff's contention the claimed exterior unit defects were due to defendant's failure to apply a protective coating thereto, etc., plaintiff erroneously argues in his brief that defendant's "evidence of alleged defects consisted solely of various photographs" which were admitted into evidence over plaintiff's objections that the pictures were inadmissible due to defendant's "failure to lay a proper foundation for them." We note initially that ordinarily an objection to evidence must specifically state the grounds on which it is based and that an objection where no foundation or proper foundation has been laid is too general to warrant sustentation. Fuerst v. St. Louis Public Service Company, 368 S.W.2d 550, 553 (Mo.App.1963); 88 C.J.S., Trial § 124 c, at p. 252 (1955). But more important and disturbing to us is the fact that plaintiff refers to the exhibits collectively with the unauthorized implication that all picture exhibits were objected to for the reason stated in the brief.

According to our calculations, defendant's picture exhibits numbered 24 in toto and when the trial court inquired of plaintiff's counsel as each was offered into evidence, that lawyer responded "No objection" to 17 of the proffered exhibits. As to three of the objected-to exhibits, plaintiff's own witness acknowledged they "fairly and accurately represented that portion of the door" showing the complained-of defects. It is little wonder, therefore, the court nisi overruled plaintiff's objection thereto "because a proper foundation has not been laid." The four remaining objected-to pictures were said by the identifying witness to accurately represent the workmanship flaw complained of by defendant and were admitted by the court over plaintiff's nonspecific objection that "no foundation laid, no testimony to tie when these pictures were taken."

We see no trial court error in admitting any of the picture exhibits and are most unappreciative of plaintiff's apparent representation, be it deliberate or otherwise, that all such exhibits were admitted over trial objections.

Plaintiff's contention in his point that defendant's damages to the exterior door unit resulted from defendant's failure to protect with a finish coat, was virtually ignored in the argument made relative thereto. At first blush from reading plaintiff's argument assertions that the court nisi found his services to be worthless and of no value, one is left with the impression plaintiff went totally uncompensated for his work. However, as noted in the fourth paragraph hereof, the plaintiff was credited with $4,456.24 for the craftsmanship furnished, which represented compensation for a large segment of the services rendered and which defendant acknowledged were completely satisfactory.

Albeit plaintiff's objections to a few of the photographs were not, strictly speaking, on the ground they were taken at times too remote to the date of installation to be accurate, for the sake of argument we will assume his objections that there was "no testimony to tie when these pictures were taken" were so intended. However, when defendant's witness testified that when he met with defendant and plaintiff's employee shortly after installation to discuss and view defendant's complaints, he pointed out to the employee all of the "problems that had been pictured and discussed here today." Thus the witness testified the complaints made...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT