Pasta House Co. v. Williams, 60338

• Decision Date: 30 June 1992
• Docket Number: No. 60338,60338
• Citation: 833 S.W.2d 460
• Parties: THE PASTA HOUSE COMPANY, Plaintiff/Appellant, v. Leonard F. WILLIAMS, Jr., d/b/a Construction Consultants, Defendant/Respondent, and Larry L. Bollinger, d/b/a Bollinger Surveying Co., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 460

833 S.W.2d 460

THE PASTA HOUSE COMPANY, Plaintiff/Appellant, v. Leonard F. WILLIAMS, Jr., d/b/a Construction Consultants Defendant/Respondent and Larry L. Bollinger, d/b/a Bollinger Surveying Co. Defendant/Respondent.

No. 60338.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 30, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1992.

James J. Sauter, St. Louis, for plaintiff/appellant.

Timothy Belz, Jack E. Koslow, St. Louis, for defendant/respondent.

AHRENS, Judge.

In this bench-tried breach of contract and negligence action, The Pasta House Company, appellant, appeals from the trial court's judgment dismissing appellant's cause of action against respondents, Leonard F. Williams, d/b/a Construction Consultants, and Larry L. Bollinger, d/b/a Bollinger Surveying Company. We affirm.

In April, 1987, appellant hired Williams to perform engineering and survey services for the construction of a restaurant on Lindbergh Boulevard. Williams subcontracted with Bollinger to perform some of the surveying work.

On July 27, 1987, an amendment to the Declaration of Restrictions on appellant's property was filed with the St. Louis County Recorder of Deeds. That amendment reflected a reduction from 137 feet to 105 feet as the distance between Lindbergh Boulevard and the building restriction line on the southern border of the property. On August 13, 1987, Bollinger staked the layout of the restaurant on the property.

After the foundation was laid, the building shell was constructed, and the structural roof was in place, an outbound survey revealed that a portion of the entry and the southern corner of the restaurant extended over the 105 feet building restriction line. When efforts to move the building restriction line closer to Lindbergh Boulevard failed, appellants removed the encroaching portions of the building. Appellants filed this action for breach of contract and negligence seeking damages incurred in removing those portions of the building and for damages arising from the reduction in the restaurant's seating capacity. At the close of appellant's case, the trial court granted respondents' motions to dismiss both counts.

In its first point, appellant asserts the trial court erred in sustaining respondents' motions to dismiss count I, because appellant made a submissible case on breach of contract. Appellant argues that in reviewing the trial court's ruling, we are to consider only that evidence which is most favorable to appellant.

Initially, we note that in a bench-tried case a motion to dismiss filed at the close of a plaintiff's case is treated "as a submission on the merits, requiring the court to determine credibility of the witnesses and to weigh the evidence." Wyrozynski v. Nichols, 752 S.W.2d 433, 436-37 (Mo.App.1988). Accordingly, "we view the evidence in the light most favorable to the judgment." State ex rel. Webster v. Eisenbeis, 775 S.W.2d 276, 277 (Mo.App.1989). We will sustain the trial court's judgment unless it is not supported by substantial evidence, 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).

Appellant argues Williams breached its contractual obligation "to stake out the building correctly," and Bollinger failed "to deliver to [appellant] a correct building stake out." Appellant asserts Williams and Bollinger "would not have breached a duty to [appellant] if they staked the building exactly where [appellant] clearly stated the building was to be staked, regardless of the amended recorded building setback line...."

Joseph Fresta, vice-president and co-owner of The Pasta House Company, testified that when he discussed the project with Williams, Williams was given a plat on which an architect had drawn the outline of the restaurant building. That was the only site plan Fresta provided to Williams. When Williams asked Fresta about the building restriction line, Fresta told him they had to be behind that line, but that the "line was going to be moved forward so we can get the building closer to the street." Fresta testified that he directed Williams to proceed with the engineering work in accordance with the location of the restaurant building on the plat. In response to Williams' request for the "building mark," Fresta replied, "don't worry about it. We're going to have it moved closer to Lindbergh." Fresta did not supply respondents with information that the building restriction line had been moved.

The trial court concluded there was no breach of contract in the staking of the property. Rather, the trial court found "the plaintiff's testimony in this case was that defendant Williams and through him defendant Bollinger was told not to worry about the setback lines because the plaintiff was going to get the setback lines changed...." The trial court concluded respondents completed the work "in accordance with the contract" and in accordance with appellant's request. In light of Fresta's testimony, the trial court did not err in granting respondents' motions with respect to the...