Moravac v. Dave Littleton Ford, Inc., WD

Decision Date25 August 1992
Docket NumberNo. WD,WD
Citation838 S.W.2d 151
PartiesMatt MORAVAC, d/b/a Kay-Cee Asphalt, Appellant, v. DAVE LITTLETON FORD, INC., Respondent. 45873.
CourtMissouri Court of Appeals

R. Todd Wilhelmus, Mission, for appellant.

Roger G. Burnett, Liberty, for respondent.

Before LOWENSTEIN, C.J., and KENNEDY and BERREY, JJ.

LOWENSTEIN, Chief Judge.

This appeal is from a breach of contract suit brought by an entity which was to perform work for the respondent. The written contract was never introduced in evidence, but the respondent who barred the appellant from performing the work admitted to the essential terms of the agreement. The obligee, the respondent, even before performance began, believed the work would not be done in a workmanlike manner and prevented performance.

Matt Moravac, d/b/a Kay-Cee Asphalt (Moravac), filed this suit for damages from alleged breach of contract by respondent corporation, against Dave Littleton Ford, Inc. (Littleton). Moravac appealed. The trial court found that Moravac had not proved a suit for damages from breach of contract because the written contract was not offered into evidence, and therefore, there was no "contract" upon which to decide the case. In this bench-tried matter, the court never addressed legal justification for Littleton's actions nor did it reach the measure of damages. Moravac's points on appeal are 1) that the trial court erred in finding no contract was proven, because a) Littleton judicially admitted the execution and existence of the contract, b) Littleton judicially admitted preventing Moravac from performing pursuant to the terms of the contract, c) Littleton's actions excused Moravac from proving that Moravac had performed the terms of the contract, and, 2) that the trial court erred in overruling Moravac's objections to Littleton's introduction of evidence pertaining to an affirmative defense when the defense was not plead in Littleton's answer.

I. Facts on Appeal

On June 8, 1990, Matt Moravac met with David Littleton at Dave Littleton Ford, Inc., to discuss the asphalting of the dealership's parking lot. Moravac and Littleton walked over the lot, discussed what would be asphalted, and Moravac wrote down the details of area asphalted and price on a "proposal" slip, which both Moravac and Littleton signed on that day under the word "acceptance." The proposal included the names and addresses of the parties, the measurements of the area to be asphalted, the price for the job to be paid on completion, and that the job would be done in a "workmanlike manner." The parties also orally agreed that Littleton would add extra gravel to the lot and do some grading prior to the asphalt job. At some point Littleton began learning about asphalting, and how his lot should be asphalted, from the compaction rate of the gravel base to the way the old and new asphalt should be joined. Littleton was apparently told by a commercial neighbor that Moravac would not do a good job on the lot.

On June 20, 1990, Moravac returned to start the job. Moravac testified that Littleton had not put in sufficient gravel, while Littleton testified that when he asked how Moravac would deal with certain problem areas on the lot, Moravac's answers were not satisfactory: when Littleton asked what old asphalt would be removed in order to properly lay the new asphalt, Moravac said "I don't know, where do you want me to [remove the old]." Littleton then said, "Look, I don't want to do this," called off the deal and told Moravac to leave the premises.

Although Littleton did not believe that Moravac would remove existing asphalt in order to have a clean edge to bond the new asphalt, or would correctly fix the two potholes on the lot, Moravac...

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5 cases
  • Venable v. Hickerson, Phelps, Kirtley & Associates, Inc., WD
    • United States
    • Missouri Court of Appeals
    • August 8, 1995
    ...(3) that defendant did not perform; and (4) that defendant's failure to perform caused plaintiff damage. Moravac v. Dave Littleton Ford, Inc., 838 S.W.2d 151, 153 (Mo.App.1992). Count II of Venable's petition sufficiently alleges each required In paragraph 23 of Count II, Venable alleges th......
  • Hershberger v. Young
    • United States
    • Missouri Court of Appeals
    • November 13, 2001
    ...is that defendant's breach of a duty owed to the plaintiff proximately caused the plaintiff's injury); Moravac v. Dave Littleton Ford, Inc., 838 S.W.2d 151, 153 (Mo. App. 1992) (element of breach of contract claim is that the defendant's non-performance of the contract terms caused the plai......
  • McCormick v. Cupp
    • United States
    • Missouri Court of Appeals
    • June 10, 2003
    ...into evidence, an exhibit is not part of the record and normally cannot be considered on review. See Moravac v. Dave Littleton Ford, Inc., 838 S.W.2d 151, 153 (Mo.App. 1992) (contract not admitted into evidence). Even if these two technical deficiencies were not present, the estimate was of......
  • Western Surety Company v. Intrust Bank
    • United States
    • Missouri Court of Appeals
    • June 20, 2000
    ...or tendered performance, that the defendant did not perform, and that the plaintiff was thereby damaged." Moravac v. Dave Littleton Ford, Inc., 838 S.W.2d 151, 153 (Mo. App. 1992). A breach of contract claim does not include an element of fraud, deception, or misrepresentation. The trial co......
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