Percy's High Performance, Inc. v. Krough

• Decision Date: 25 October 2013
• Docket Number: No. SD 32121.,SD 32121.
• Citation: 445 S.W.3d 577
• Parties: PERCY'S HIGH PERFORMANCE, INC., a Missouri Corporation, Plaintiff–Respondent, v. David L. KROUGH and Debra L. Baker, Defendants–Appellants.
• Court: Missouri Court of Appeals

445 S.W.3d 577

PERCY'S HIGH PERFORMANCE, INC., a Missouri Corporation, Plaintiff–Respondent

v.David L. KROUGH and Debra L. Baker, Defendants–Appellants.

No. SD 32121.

Missouri Court of Appeals, Southern District, Division Two.

Oct. 25, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 19, 2013.

Application for Transfer Denied Feb. 4, 2014.

Gene A. Hilton, Camdenton, MO, for Appellant.

W. Gary Drover, Richard L. Rollings Jr., Camdenton, MO, for Respondent.

Opinion

MARY W. SHEFFIELD J.

David L. Krough (“Krough”) and Debra L. Baker (“Baker”)¹ appeal from a judgment in favor of Percy's High Performance, Inc. (“Percy's”). In four points, Krough and Baker challenge the trial court's award of actual damages for breach of contract. Percy's has filed a motion requesting reasonable attorney's fees incurred in conjunction with this appeal. Finding no merit in any of Krough and Baker's points, we affirm the judgment of the trial court. Furthermore, we grant Percy's motion for attorney's fees, and remand for a hearing to determine a reasonable amount of attorney's fees.

Standard of Review

In a court-tried case, we will affirm the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. McCullough v. Doss, 318 S.W.3d 676, 678 (Mo. banc 2010). “[T]his court is to exercise its power to set aside a judgment on the ground it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong.” Gilmartin Bros., Inc. v. Kern, 916 S.W.2d 324, 328 (Mo.App.E.D.1995).

Factual and Procedural Background

On March 1, 2008, Krough and Baker entered into a “CONTRACT FOR DEED” (“the Contract”) with Percy's for the purchase of property in Osage Beach, Missouri. Jeff Percival (“Percival”), Percy's owner and president, negotiated the agreement on behalf of Percy's. Based on a July 3, 2007 appraisal, Percy's had listed the property at $365,000. The final agreed selling price was $305,000. Under the Contract, Krough and Baker agreed to pay $1,000 at the time of signing. The Contract further provided Krough and Baker would make monthly interest payments of $1,710 from April 1, 2008, through October 1, 2009. On October 1, 2009, the remaining balance of $304,000 was due.

Krough and Baker took possession of the home after signing the Contract. Before October 1, 2009, Krough contacted Percival and expressed concern about Krough and Baker's ability to obtain financing. Percival referred Krough to multiple banks to help Krough and Baker obtain financing. Krough believed he could obtain better financing through State Farm because Krough and Baker had a past affiliation with State Farm. State Farm conducted an independent appraisal and valued the property at $235,000 as of October 5, 2009. On the basis of the low appraisal, State Farm denied Krough and Baker's application for a loan. Krough and Baker did not make the $304,000 payment due on October 1, 2009.

On November 6, 2009, Percy's sent a “Notice of Failure to Cure” to Krough and Baker. The notice informed Krough and Baker they were in default on the Contract and had the right to cure by paying $305,710—the $304,000 balloon payment plus $1,710 interest—within fifteen days.

In mid-November 2009, Krough and Baker vacated the property. Percy's took possession of the home to “try to take care of the property[.]” On December 10, 2009, Percy's sent a letter to Krough and Baker requesting prorated rent for the month of November. Krough told Percival he and Baker were not going to pay the rent demand.

In December 2009, Percy's placed a “For Sale” sign on the property. Percy's also contracted with a real estate auction company to auction the property. An auction was held in May, 2010, but the property did not receive any bids.

On June 24, 2010, Percy's sent Krough and Baker another letter in an effort to resolve the matter. In response, Krough left Percival a voicemail reiterating that he and Baker had difficulty obtaining financing.

On September 2, 2010, Percy's filed a petition against Krough and Baker. In the petition, Percy's sought the full balance of the purchase price as damages. Percy's did not plead a count in specific performance and did not allege it had no adequate remedy at law. Krough and Baker filed an answer and asserted as affirmative defenses that Percy's had cancelled the Contract and that Percy's had misrepresented the value of the property. Following a bench trial, the trial court found Krough and Baker had breached the Contract and entered judgment in favor of Percy's. It awarded $69,000 in damages, calculated as the difference between the amount owed on the Contract ($304,000) and the State Farm appraisal ($235,000). The trial court also awarded Percy's $8,000 in attorney's fees. Krough and Baker appeal.

Discussion

Krough and Baker raise four points on appeal challenging the trial court's award of damages. For ease of analysis, we address Point I and Point II together before addressing the remaining points.

Points I & II: Invited Error

In Point I, Krough and Baker argue the trial court erred in awarding Percy's actual damages because the Contract did not provide a damage remedy. In support, they suggest the provision of the Contract under which Percy's sought relief provided for specific performance. In Point II, Krough and Baker argue the trial court erred in awarding actual damages because Percy's petition requested specific performance. Both points fail because at trial Krough and Baker objected to any evidence supporting an award of specific performance.

The following additional facts are relevant to the resolution of these two points. During Percival's testimony at trial, Percy's attorney asked whether Percival was seeking specific performance of the contract. Krough and Baker's attorney objected. He argued evidence supporting a plea for specific performance was outside the scope of the pleadings. Percy's attorney rephrased the question to Percival as follows: “on behalf of Percy's, do you remain ready, able and willing to convey a warranty deed as soon as the $304,000.00, plus interest, is paid?” Krough and Baker's attorney objected again on the same grounds. Percy's attorney replied, “I don't think that question is outside the scope of the pleading. Asked for the damages. Once he got the damages then he's obligated to deliver the deed.” The trial court overruled the objection and allowed Percival to testify he was willing to convey the deed if he received the full amount due on the Contract.

As this exchange demonstrates, by objecting to the evidence regarding the remedy of specific performance, Krough and Baker invited the errors of which they now complain in Point I and Point II. “The general rule of law is that a party may not invite error and then complain on appeal that the error invited was in fact made.” Pierson v. Kirkpatrick, 357 S.W.3d 293, 299 (Mo.App.S.D.2012) (quoting Lau v. Pugh, 299 S.W.3d 740, 757 (Mo.App.S.D.2009) ). That is, parties are bound by the positions they took at trial, and cannot obtain relief on appeal based on an error in which, by their own conduct, they joined or acquiesced. Howsmon v. Howsmon, 77 S.W.3d 752, 757 (Mo.App.S.D.2002). Here, by objecting to evidence that would support a claim for specific performance, Krough and Baker led the court into crafting a damages remedy. They cannot now argue on appeal that the action of awarding damages was erroneous.

Point I and Point II are denied.

Point III: Weight of the Evidence of Damages

In Point III, Krough and Baker assert that the trial court's award of damages was against the weight of the evidence because Percy's did not present evidence of actual damages. Specifically, they suggest that (1) the trial court was bound by the evidence of the value of the property presented through Percival's testimony and (2) the appraisal Krough and Baker presented at trial could not be considered because no appraiser testified to that value. These arguments are without merit.

Generally speaking, “[a] seller's measure of damages for a buyer's breach of contract for the sale of land with a structure on it is the difference between the purchase price and the fair market value of the property on the date of breach.” Crabby's Inc. v. Hamilton, 244 S.W.3d 209, 217 (Mo.App.S.D.2008). “Conflicts in the evidence concerning real estate values are for resolution by the fact finder.” Id. “It is sufficient if the value set by the fact finder is ...